AMEER & OTHERS (SPECIAL TRUSTEES DEVATAGAHA MOSQUE & SHRINE) v. SALIE AND

041-SLLR-SLLR-1999-V-3-AMEER-OTHERS-SPECIAL-TRUSTEES-DEVATAGAHA-MOSQUE-SHRINE-v.-SALIE-AND-.pdf


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AMEER & OTHERS
(SPECIAL TRUSTEES DEVATAGAHA MOSQUE & SHRINE)
v.SALIE AND OTHERS
COURT OF APPEALWIGNESWARAN, J„
JAYAWICKREMA, J.
C.A. NO. 1/95.
WAKFS TRIBUNAL NO. W/TRIB/76.
WAKFS BOARD NO. WB/2201/94.
AUGUST 17, 1998.
SEPTEMBER 18, 1998.
OCTOBER 14, 1998.
Muslim Mosques and Charitable Trusts Act – Wakfs Act – S. 9 (D) (G), s. 29
, s. 54 (3) (4) – s. 55, s. 55 (A) – Regulation 37 – Appeal from order of WakfsTribunal – Order or Judgment – Civil Procedure Code s. 754 (2) – Violation ofprinciples of natural justice – Tribunal considering extraneous matters – Illegality- Tribunal acting in an arbitrary manner.
The appellants sought to canvass the Order of the Wakfs Tribunal which dismissedthe appeal of the appellants. It was contended by the respondents (as a preliminaryobjection) that the proper procedure was by way of leave to appeal first had andobtained as required under s. 55 (A) of the Wakfs Act read with regulation 37and s. 754 (2) of the Civil Procedure Code.
The appellants contended that the Tribunal has dealt with matters which werenot the subject-matter of the Appeal, and granted reliefs not prayed for andtherefore acted in excess of jurisdiction.
Held:
Section 54 (4) Wakfs Act state that every regulation shall as soon asconvenient after publication in the Gazette be brought before Parliamentfor approval and upon such approval shall have the same force and effectas a provision of the Act.
It is clear that regulation 37 which lays down that any party aggrievedby any final order made by Wakfs Tribunal may apply by petition to theCourt of Appeal for leave to appeal against such order… though Gazetted
CA Ameer & Others (Special Trustees Devatagaha Mosque & Shrine)
v. Salie and Others313
was never brought before Parliament for approval. Therefore, regulation37 has no application.
In any event regulation 37 is ultra vires the enabling Act. The substantiveAct provides a right of appeal under s. 55 (A) and regulations cannot beframed in respect of a matter specifically provided for in this Act.
S. 754 (1) Civil Procedure Code is applicable to a judgment whereas s.754 (2) is applicable to Orders made in the course of any Civil Action,proceeding or matter. The present appeal is not from an order made bythe Wakfs Board/Tribunal in the course of any action, proceeding or matter.It emanates from an order which is the final expression of the decisionof the Wakfs/Tribunal – therefore an appeal under s. 754 (1) CPC lies.
On a perusal of the proceedings of the Wakfs Board it is clear that theyhave not followed the procedure laid down in the Act.
The Wakfs Tribunal, in the appeal, had made orders regarding matterswhich were not appealed against, the Tribunal has considered extraneousmatters, they acted beyond their jurisdiction.
APPEAL from the Order of the Wakfs Tribunal.
Cases referred to:
Gamhewa v. Maginona – [1989] 2 Sri LR. 250.
Siriwardena v. Air Ceylon Ltd. – [1984] 1 Sri L.R. 286.
Faiz Mustapha, PC with Farook Thahir and A. A. M. Illiyas for respondents-appellants.
S. Kanagasingham for applicant-respondent.
Cur. adv. vult.
December 1, 1998.
JAYAWICKREMA, J.
This is an appeal from the order of the Wakfs Tribunal dated12. 8. 1995 dismissing the appeal of the appellants.
The appellants sought to canvass the order of the Wakfs Tribunal-on the following grounds:
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The Tribunal had dealt with matters which were not subject-matters of the appeal:
It had acted on matters not in evidence and therefore theorder is unsupported by evidence and made in violation ofthe principles of natural justice:
It had granted reliefs not prayed for and therefore actedwithout jurisdiction:
It had granted reliefs, which in any event, it had no jurisdictionto grant.
The respondents have raised two preliminary objections in regardto the maintainability of this appeal. The Court indicated that the mainappeal will be heard and the ruling on the preliminary objections willalso be dealt with in the main appeal.
The two preliminary objections raised by the counsel for therespondents were:
The appeal is not properly constituted and the parties werenot properly before this Court in that they have failed to come byway of leave to appeal first had and obtained as required undersection 55 (a) of the Muslim Mosques and Charitable Trusts orWakfs Act read with regulation 37 passed under the said Act andpublished in Gazette No. 342/8 of 29th March, 1985 and also therelevant provisions of the Civil Procedure Code;
The brief is incomplete, in that certain material and relevantdocuments that were before the Wakfs Board and subsequentlybefore the Wakfs Tribunal, the consideration of which had beenthe basis of the orders of the Wakfs Board and the Wakfs Tribunal,have not come into the appeal brief.
CA Ameer & Others (Special Trustees Devatagaha Mosque & Shrine)
v. Salie and Others (Jayawickrama, J.)315
As regards the preliminary objection (b) as to the question ofincompleteness of the brief, this Court before another Bench has ruledthat of the said documents sought to be added only the followingdocuments could be added to the brief:
Letterdated09.05.1994;
Letterdated23.08.1994;and
Letterdated28.10.1994.
From that order, the respondents sought special leave to appealfrom the Supreme Court, but leave was refused. Hence, this Courthas to make an order only with regard to the first preliminary objection,that is, on the question of leave to appeal.
Learned counsel for the respondent submitted that the procedurefor such appeal is spelt out in section 55 (A) of the Muslim Mosquesand Charitable Trusts or Wakfs Act.
Section 55 (A) reads as follows:
“Every order made by the Tribunal shall be deemed to be anorder made by a District Court and the provisions of the CivilProcedure Code governing appeals from orders and judgments ofa District Court shall, mutatis mutandis, apply to and in relationto appeals from orders of the Tribunal."
Learned counsel further submitted that the said provision whichmust be observed in preferring an appeal from the orders of WakfsTribunal must be read necessarily with rule 37 of the regulationspublished in Gazette No. 342/8 of 20. 03. 1985 which are comple-mentary to that section. It was admitted that these regulations havenot been presented to Parliament for approval in terms of section 54of the said Act, but the counsel argued that they are still in forceand legally binding. But, on a reading of sections 54 (3) and (4) it
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is very clear that these regulations have no force of law until theyare brought before Parliament for approval.
Section 54 (3) states that –
"Every regulation made by the Minister shall be published inthe Gazette and shall come into operation on the date of suchpublication or on such a later date as may be specified in theregulation."
Section 54 (4) provides thus:
"Every regulation shall as soon as convenient after publicationin the Gazette be brought before Parliament for approval andupon such approval, shall have the same force and effect as aprovision in this Act. Any regulation which is not so approved shallbe deemed to be rescinded from the date of its disapproval butwithout prejudice to anything previously done thereunder."
Thus, it is abundantly clear that although these provisions wereGazetted, they were never brought before Parliament for approval.According to the above provisions, these regulations have the sameforce and effect as a provision in the Act only "upon such approval”.Once the Parliament approves such regulations then it will be effectivefrom the date of the publication in the Gazette. However, if they arenot approved by Parliament, the regulations' Gazetted shall bedeemed to be rescinded. Thus, it is very clear that these regulationsdo not have any force or effect as they have not been approvedby Parliament. Therefore, regulation 37 which states, that "Any partyaggrieved by final order made by the Wakfs Tribunal may apply bypetition to the Court of Appeal for leave to appeal against such orderand shall give (to the other party) to the appeal, notice of suchapplication as may be provided for by the Civil Procedure Code", hasno application to this appeal.
CA Ameer & Others (Special Trustees Devatagaha Mosque & Shrine)
v. Satie and Others (Jayawickrama, J.)317
As regards this preliminary objection, the learned President’s Counselfor the appellants submitted that regulation 37 limits the right of appealonly to final orders made by the Wakfs Tribunal and this is in theteeth of section 55A which grants the right of appeal in respect of"Every order made by the Wakfs Tribunal" and makes the appellateprovisions apply mutatis mutandis. He further contended that section54 (1) and (2) enables regulations to be made in respect of matters"authorised or required by the Act to be prescribed". Learned Presi-dent's Counsel further submitted that in the present instance, thesubstantive Act itself provides a right of appeal under section 55A andregulations cannot be framed in respect of a matter specifically pro-vided for in the very Act, and cited Gamhewa v. Maginona andAnother where it was held that a right of appeal must be expresslyconferred and cannot be implied. In Gamhewa's case it was heldthat the regulation which purported to create a right of appeal wasultra vires the enabling powers of the Minister. I agree with the learnedPresident's Counsel's contention that in the present instance also,regulation 37 is similarly ultra vires the enabling Act. Section 55 (A)of the main Act expressly deals with the right of appeal. Moreover,the regulations have not been placed before Parliament and as suchthey do not have the force of law.
Learned counsel for the respondents submitted that every ordermade by the Wakfs Tribunal is given the characteristic of an inter-locutory order as envisaged by the relevant provisions of the CivilProcedure Code by section 55 (A) of the Wakfs Act, where it is statedthat "Every order made by the Tribunal shall be deemed to be anorder made by a District Court". Learned counsel contended that thequestion will arise what is an order made by a District Court and theanswer was found in section 754 (5) of the Civil Procedure Code whichstated notwithstanding anything to the contrary in the Ordinance forthe purposes of that chapter "judgment" meant any judgment or orderhaving the effect of a final judgment made by any civil Court and an"order" meant final expression of any decision in any civil action,proceeding or matter which was not a judgment. The learned counselargued that the appellants were required to follow the procedure laid
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down in section 754 (2) regarding interlocutory appeals and obtainleave from this Court to appeal and this has not been followed inthis case. Such failure he said was fatal.
Section 754 (5) defines the words "judgment" and "order" in thefollowing terms: "judgment" means any judgment or order having theeffect of a final judgment made by any civil Court: and "order" meansthe final expression of any decision in any civil action, proceedingor matter which is not a judgment.
Further, section 5 of the Civil Procedure Code which is theinterpretation section defines the words “judgment" and "order" in thefollowing terms:
“Judgment" means the statement given by the Judge of thegrounds of decree or order; "order” means the formal expressionof any decision of a civil Court which is not a decree.
Learned counsel for the respondents attempted to make a dis-tinction between the provisions of sections 754 (1) and (2) of theCivil Procedure Code. Under section 754 (1) any person who shallbe dissatisfied with any judgment may prefer an appeal to the Courtof Appeal whereas under section 754 (2) any person who shall bedissatisfied with any order made by any original Court "in the courseof any civil action, proceeding, or matter to which he is or seeksto be a party, may prefer an appeal to the Court of Appeal againstsuch order for the correction of any error in fact or in law, with theleave of the Court of Appeal first had and obtained". It is very clearfrom the above provisions that section 754 (1) is applicable to ajudgment whereas section 754 (2) is applicable to orders made inthe course of any civil action, proceeding or matter to which a personis or seeks to be a party.
In the instant case, this appeal is not from an order made by theWakfs Board or Wakfs Tribunal in the course of any action, proceedingor matter. This appeal emanates from an order which is the final
CA Ameer & Others (Special Trustees Devatagaha Mosque & Shrine)
v. Salie and Others (Jayawickrama, J.)319
expression of the decision of the Wakfs Tribunal. The order of theWakfs Tribunal has the effect of a final judgment in the instant case.In fact, the Wakfs Tribunal at page 44 of the brief states that it isa "judgment of the Wakfs Tribunal in case No. W/TRIB/76 DewatagahaJumma Mosque and Shrine". The judgment consists of seven pageswhich is a statement given by the Wakfs Tribunal of the grounds forits order. Thus, it is very clear that this appeal had been preferredagainst a judgment in terms of section 754 (1) of the Civil ProcedureCode.
The learned President's counsel for the appellants submitted thatsection 55A of the Wakfs Act catches up both "orders" and "judgments"and by virtue of this a final appeal would be attracted in respect ofa judgment or final order, whereas, an interlocutory appeal would liein respect of an order which is not a final order or judgment. I agreewith the learned President's counsel that in the present instance, sincethe order is final in nature a direct appeal has been correctly lodgedas the order appealed from finally disposed of the matter and as suchis a "judgment", (vide Siriwardena v. Air Ceylon Ltd.)®
In view of the above reasons, I overrule the preliminary objectionsraised by the respondents.
The appellants sought to canvass the order of the Wakfs Tribunalon the following grounds:
The Tribunal has dealt with the matters which were not thesubject-matter of the appeal.
It has acted on matters not in evidence and therefore theorder is unsupported by evidence and made in violation ofthe principles of natural justice.
It has granted reliefs not prayed for and therefore actedwithout jurisdiction.
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It has granted reliefs which in any event it has no jurisdictionto grant.
The relevant facts resulting in the order of the Wakfs Tribunal asstated by the appellants are as follows:
The appellants who are the Trustees of the Mosque receiveda letter dated 06. 12. 1994 (P1) from the Secretary of theWakfs Board directing that two lists of names said to havebeen submitted by an association calling itself “the DevatagahaJumma Mosque & Shrine Jamaath Association" be postedon the Mosque Notice Board for registration as members ofJamaath of the Mosque.
Attached to the letter P1 were certain decisions of the Boarddated 24. 09.1994, and 30.10.1994 from which the Trusteesbecame aware that certain ex parte orders had been madeby the Board directing the registration of these persons asmembers of the Jamaath.
On receipt of the said letter the Trustees appeared beforethe Wakfs Board on 11. 12. 1994 and submitted throughcounsel that the two lists had been submitted by an asso-ciation of which they were totally unaware and which hadno connection with the Mosque and that the order had beenmade ex parte and in violation of the principles of naturaljustice. The Wakfs' Board thereupon made order that "untilthis matter is inquired into, the action requested by letterdated 06. 12. 1994 is withdrawn" and allowed objections tobe filed on or before 08. 01. 1995.
The Trustees filed’objections on 08. 01. 1995 as directedby the Board, objecting to the registration of those personsas members of the Jamaath.
CA Ameer & Others (Special Trustees Devatagaha Mosque & Shrine)
v. Salie and Others (Jayawickrama, J.)321
The learned President's counsel for the appellants submitted thatthe Wakfs' Board made order on 28. 01. 1995 without holding aninquiry. He further submitted that this is clear from the order itselfwhich begins as follows: "the Wakfs Board went through the statementof objections the special trustees submitted on 08. 01. 1995". Hecontended that the Board only “went through the objections" and didnot grant an opportunity to the Trustees to be heard in support ofthe objections. He further submitted that the Board went on to makeorder directing the Trustees to prepare a constitution for DevatagahaJumma Mosque and to carry out the condition of constitution andprepare a Jamaath list accordingly taking into consideration the residentsof certain specified areas. The learned President's counsel furthercontended that the matter in issue was only the registration of thepersons referred to in the letter dated 06. 12. 1994 as members ofthe congregation and that the preparation of a constitution togetherwith a new list of the congregation in accordance with the newconstitution was not a matter that was before the Wakfs Board andas such the order is completely outside the matter in issue beforethe Wakfs Board. The learned President's counsel alleged that theorder had been made without granting a hearing to the appellantsand that the finding that the Mosque did not belong to the NakshabandiyaSect was unsupported by evidence. Therefore, he contended that theonly issue which went before the Wakfs Tribunal was whether theBoard had acted in violation of the principles of natural justice by notgiving a hearing and permitting the evidence to be led.
When the appeal came up for hearing before the Wakfs Tribunalall the parties were represented by counsel. The Tribunal made orderon 12. 08. 1995 as follows:
That the respondents had alleged corruption and mis-man-agement on the part of the appellants and that there was"thuggery, corruption and misappropriation of funds".
That the Board had correctly held that the Mosque did notbelong to Nakshabandiya or to any other Sect.
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(iii) The Wakfs Tribunal upheld the order of the Wakfs Board
and went to make further orders as follows:
Directing "the Wakfs Board to take steps forthwith toprepare a constitution in consultation with the Jamaaththe list of which is already prepared by the Wakfs'Board".
Directing “the Wakfs Board to convene a meeting ofthe said Jamaath and elect the Trustees".
Directing "the Wakfs Board to take action against theappellants according to law and recover all monies dueto the Mosque" and
Directing "the Wakfs Board to consider the feasibilityof replacing the Special Trustees immediately".
The learned President's Counsel for the appellants contended thatthe only issue before the Wakfs Board was the registration of certainpersons referred to in the letter marked P1, as members of theJamaath. The Wakfs Board clearly erred in making its order withoutany hearing at all and as such the only issue before the Wakfs Tribunalwas whether the Wakfs Board had erred in deciding the matter withoutgranting a hearing. The learned President's Counsel submitted thatthe Wakfs Tribunal did not determine this issue by holding an inquiryand that the order had been made only upon a perusal of theadministrative file and therefore the Tribunal clearly erred in dealingwith matters which were not in issue before it in the appeal that cameup for determination. He further contended that no evidence was ledbefore the Wakfs Tribunal and the Tribunal itself fell into the errorof determining matters without evidence and without permitting therespondents an opportunity of rebutting the adverse finding madeagainst them as there were adverse allegations which they had beencalled upon to meet. He further contended that the question ofmisconduct by the Trustees was not a matter in issue before the
CA Ameer & Others (Special Trustees Devatagaha Mosque & Shrine)
v. Salie and Others (Jayawickrama, J.)323
Tribunal, as the Wakfs Board itself has specifically stated that therewas no allegation of misconduct against the trustees. Therefore, thelearned President's counsel submitted that the finding of misconductapart from being in violation of the principles of natural justice andunsupported by evidence, is also without jurisdiction as it is a mattertotally outside the ambit of the appeal which came up before the WakfsTribunal, as it is a matter which can be inquired into solely by theWakfs Board in terms of section 29 (1) of the Wakfs Act.
The learned President's Counsel further submitted that the orderof the Wakfs Board and that of the Wakfs Tribunal are inconsistentand contradictory. He contended that the Board directed that theregistration of the Jamaath be done in accordance with a constitutionwhich the Trustees were directed to draft whereas the Tribunal in itsorder directed that the Trustees should prepare a constitution inconsultation with the Jamaath "the list of which is already preparedby the Wakfs Board". He further contended that the order of the WakfsTribunal directing the Board to consider the feasibility of replacing thespecial Trustees is also totally unwarranted as this question was neverbefore the Board or Tribunal and that the appointment of SpecialTrustees is a matter within the discretion of the Board and the Tribunalcannot give directions in regard to the exercise of this discretion.
When one considers the relevant provisions of the Muslim Mosquesand Charitable Trusts or Wakfs Act, the documents marked and thesubmissions made by the respective counsel, it is abundantly clearthat the Wakfs Board as well as the Tribunal had not followed theprovisions of the said Act in arriving at their decisions.
Section 9B of the Act empowers the Chairman of the Board, forthe purpose of the consideration and determination of any matter tosummon and compel the attendance of witnesses; to compel theproduction of documents; and to administer any oath or affirmationto witnesses. The decision of the Board has to be by a majority ofthe members of the Board, (section 9)
Section 9F gives the chairman of the Tribunal the powers of aDistrict Court for the purpose of the consideration and determination
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of any matter. Under that section the Chairman is empowered:
to summon and compel the attendance of witnesses;
to compel the production of the documents; and
to administer any oath or affirmation to witnesses.
The decision of the Tribunal has to be by a majority of the membersof the Tribunal (section 9D (4)). Section 9G of the said Act statesthat “In any proceedings under this Act, the Tribunal shall follow theprocedure of a District Court and in the execution of orders andjudgments, shall have all the powers of a District Court and theprovisions of the Civil Procedure Code relating to the procedures andpowers of execution of a District Court shall, mutatis mutandis, applyto and in relation to the procedures and powers of execution of thetribunal".
The procedure to be followed regarding an appeal to the Tribunalfrom a decision of the Board, is laid down in section 9H. By thatsection any person aggrieved by any order or decision made by theBoard may within thirty days of such order or decision make an appealin writing to the Tribunal for the purpose of hearing and determiningany appeal made. The Tribunal shall have the powers to call for therecord of any proceedings before the Borad, any documents in thepossession of the Board, to make such inquiries as may be necessaryfor the purpose of the appeal and if it thinks fit, to admit or call forany evidence, whether oral or documentary.
When one considers the above provisions of the Wakfs Act, it isclear that in the performance of the duties and functions the Boardand the Tribunal should act judicially. To act judicially, the Board andthe Tribunal should give a fair hearing to all the parties to theapplication. It is essential that the Board and the Tribunal should followthe principles of natural justice in arriving at their decisions. A properhearing should be given to all the parties before a determination ismade either by the Board or the Tribunal.
CA Ameer & Others (Special Trustees Devatagaha Mosque & Shrine)
v. Saiie and Others (Jayawickrama, J.)325
In the instant case, on a perusal of the proceedings of the WakfsBoard dated 11. 12. 1994 (P7), it is clear that they have not followedthe procedure laid down in the Act. In those proceedings the Chairmanstates that "the Wakfs Board commenced an inquiry on those lettersand made certain orders". This is highly irregular. An inquiry beforethe Wakfs Board should start on an application made in the prescribedmanner. Charges should be formerly framed and a proper inquiryshould be held regarding such charges. It has no jurisdiction to inquireon letters. In fact, in that order, it is stated that the letter dated09. 05. 1994 does not make any complaint against the trustees. TheBoard itself seems not sure of the existence of an association by thename Devatagaha Jumma Mosque and Shrine Jamaath Association,as the order states that the letter is "purported to be" from the saidassociation. The Board without inquiring into such matters had as-sumed that the association consisted of members of the Jamaath.Further, in that order, the Chairman states that "the people who havemade these applications are not members of the Jamaath", eventhough the letter sent by them calls themselves as members of theDevatagaha Jumma Mosque and Shrine Jamaath Association.
When one considers the proceedings of 28. 01. 1995, it is clearthat the Board has made certain orders without a proper inquiry inarriving at various decisions. The Board has only gone through theobjections of the Special Trustees submitted on 08. 01. 1995. Further,the Board has rejected the objections of the Special Trustees (ap-pellants) dated 08. 01. 1995, merely going through the objections andthe administration files. Without having a proper inquiry in terms ofthe provisions of the Wakfs Act, they have held that this religiousinstitution was a Jumma Mosque and Shrine belonging to the residentsof the area in which the mosque is situated. The Board in arrivingat its decision on 28. 01. 1995, has not followed the principles ofnatural justice. It seems that the Board has acted according to itswhims and fancies. This is highly irregular. This being a religiousinstitution, it is the sacred duty of the Board to make orders aftera fair hearing.
According to the proceedings dated 28. 01. 1995, the Board hadmade order only regarding the following matters:
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{a) Devatagaha Jumma Mosque & Shrine belongs to the resi-dents of the area;
That the Nakshabandiya Thareeka had no control over theMosque:
That the Special Trustees must prepare a constitution forthe Devatagaha Jumma Mosque & Shrine;
(cO They must carry out the conditions of the constitution andprepare a Jamaath List accordingly.
The Board had taken all these decisions without a proper hearing.
An appeal was made against the above orders of the Board tothe Wakfs Tribunal. The Tribunal on that appeal had made ordersregarding matters which were not appealed against. In the appeal theyhave gone into extraneous matters such as “maladministration andthuggery" and goes on to state that there is ample evidence to provesuch facts. How the Tribunal came to such a decision without holdinga proper inquiry under the provisions of the Wakfs Act is not clear.There were no allegations against the Special Trustees before theWakfs Board and therefore, the Wakfs Board had not come to anydecision regarding the conduct of the Special Trustees. According tothe judgment of the Tribunal, findings against the appellants were ofa very serious nature and had been made against the Trustees withoutproper charges being framed against them and without a properinquiry. According to that judgment, the Tribunal seems to haveaccepted the order of the Board merely on the fact that the orderhad been signed by the Chairman and the other members of theBoard. This is clear from the following observations of the Tribunal:
“The objections raised by the appellants against the said orderof the Wakfs Board dated 28. 01. 1995 is untenable. The saidorder is duly signed by the Chairman and the other members ofthe Board."
CA Ameer & Others (Special Trustees Devatagaha Mosque & Shrine)
v. Satie and Others (Jayawickrama, J.)327
It is very clear that the Tribunal had acted beyond their jurisdiction.The Tribunal has gone into questions which were not in issuebefore it.
The Tribunal in its judgment states that "the Devatagaha JummaMosque and Shrine has a checkered history of litigations before courtsof law . . . which have gone even upto the Privy Council and thatthere is no end to such litigation even after that". I wish to note herethat it was no wonder that litigiousness appears inbuilt consideringthe fact that most of the parties to this dispute are eminent title-holdersfrom Colombo 7 as their addresses reveal to whom their prestige maymatter more than their religion. A religious institution must be managedby consensus and not by the dicta of egocentric interested parties.Thus, blame could be apportioned for any shortcomings in the managingof this Mosque not only on the trustees but also on all authoritiesentrusted with the control and management of Mosques under theWakfs Act.
The Tribunal's finding of misconduct on the part of the SpecialTrustees is a violation of the principles of natural justice as it hascome to a decision without any evidence but based solely on certainallegations made against the Trustees, in any event, if there had beenany misconduct, it has to be inquired solely by the Wakfs Board interms of section 29 (1) of the Wakfs Act.
In view of the above facts, we hold that the decisions of the WakfsBoard and that of the Wakfs Tribunal were made without jurisdictionand in violation of the specific provisions of the Wakfs Act. Therefore,we set aside both orders, ie order dated 28. 01. 1995 of the WakfsBoard and the judgment of the Wakfs Tribunal dated 12. 08. 1995.We hold that the Board and the Tribunal have acted in a very arbitrarymanner.
The appeal is allowed with costs payable by the respondents tothe appellants in a sum of Rs. 7,500.
WIGNESWARAN, J. – I agree.
Appeal allowed.