RAHUMAN AND TWO OTHERS v. TRUSTEES OF THE MOHIDEEN JUMMA MOSQUE

031-SLLR-SLLR-2004-V-2-RAHUMAN-AND-TWO-OTHERS-v.-TRUSTEES-OF-THE-MOHIDEEN-JUMMA-MOSQUE.pdf


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RAHUMAN AND TWO OTHERSvTRUSTEES OF THE MOHIDEEN JUMMA MOSQUECOURT OF APPEALMARSOOF, P.C., J. P(C/A)
SRISKANDARAJAH, J.
C.A.L.A. 321/2003WAKFS TRIBUNALAPPL. WT/142/2002AUGUST 26, 2004
Muslim Mosques and Charitable Trusts or Wakfs Act, No. 51 of 1956 amendedby Act, No. 21 of 1962, 33 of 1982, section 4(2) section 15A (2), section 15A(4),section 15A (7) section 54, section 55 – Order to Wakf Tribunal appealable –
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Does Revision lie? Appeal/or Leave to Appeal to the Court of Appeal? – Orderor Judgment-Civil Procedure Code-Section 754 (2), 755, 756(1), 756(2) (3),(4), (5), )6), (7) section 758(1) of the Industrial Disputes Act – Section 39(2) -Compared-Constitution-Article 118(g), 127, Art 128, Article 138(1), MuslimMarriages & Divorce Act, 13 of 1951 – section 43, section 44 – Ouster Clausein Wakfs Act. Interpretation Ordinance 21 of 1901 – Section 22 – Substantivepower can it be enlarged by a Regulation ?
The respondent-respondent made an application to the Wakfs Board allegingthat the Trustees – petitioner appellants – were mismanaging the Mosqueproperty. The Wakfs Board made Order directing the petitioner-appellants tohandover to the respondent-respondent the amount the said Trustee hadrecovered by the sale of Mosque land. The petitioner appellant did not appealto the Wakfs Tribunal but lodged an application in Revision. The Tribunal heldthat, it has no powers of Revisionary Jurisdiction. The petitioner-appellant,thereafter moved the Court of Appeal by way of Leave, to appeal. It wascontended that, it is a direct appeal that lies and that the Wakfs Tribunal doesnot have revisionary jurisdiction.
Held:
The Wakfs Tribunal has no jurisdiction to act in revision.
Every Order made by the Wakfs Tribunal is deemed to be an Order madeby a District Court. The application by Leave to Appeal is notmisconceived in law.
The Final and Conclusive clause would stand in the way of the WakfsTribunal reviewing the said impugned decision of the Wakfs Board -section 22 Interpretation Ordinance.
Any substantive power possessed by the Tribunal cannot be enlarged bya Regulation.
APPLICATION for Leave to Appeal.
Cases referred to:
Ameer v Special Trustees – Davatagaha Mosque & Shrine – 1999 -1 SriLR312.
Halwan and others v Kaleelul and Rahuman – 2000 – 3 Sri LR 50
Dahlan v Maharoof -1 A1 – Ameen LR 1 (Colombo Grand Mosque case)
Aalim v Fark – 1 A1 – Ameen LR 117 (Thalapitiya Mosque case)
K. Ram Banda v River Valleys Development Board – 71 NLR 25.
Ganeshanathan v Goonawardena -1984 – 1 Sri LR 319.
Cur.adv.vult
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October 5,2004
SALEEM MARSOOF, PC. J(P/CA)The respondent-respondents made the application dated 2ndFebruary 2001 to the Wakfs Board alleging inter aliamismanagement of mosque property by the petitioner-appellants asthe trustee of the Mohideen Jumma Mosque of Tillayady, Puttalam.They specifically alleged that the petitioner-appellants sold, withoutthe approval of the Wakfs Board, a land belonging to the saidmosque after sub -dividing it into separate blocks and appropriatedthe proceeds of the sale to their personal use. The Wakfs Board onreceipt of this application issued notice on the petitioner-appellantscalling for their explanations to the allegations made against them.Thereafter the Wakfs Board inquired into these allegations andfound that a part of a land belonging to the mosque which wasdepicted in Plan No. 216 dated 26th June 1978 made by P.Thangavelu, Licenced Surveyor was divided into 37 lots and sold tovarious purchasers by the. petitioner-appellants at the rate of Rs.20,000/- per lot, the proceeds of which aggregated to Rs. 740,000/-
On 11th November 2001 the Wakfs Board made a decision interms of Section 15A(2) of the Muslim Mosque and CharitableTrusts or Wakfs Act No. 51 of 1956 as amended by Act No. 21 of1962 and Act No. 33 of 1982, to cause a notice in writing to beserved on each of the petitioner-appellants in terms of that sectiondirecting them to handover within a period not exceeding one monthas may be specified in the said notice the said sum of money to therespondent-respondents, who had been in the meantime appointedtrustees of the said mosque by the Wakfs Board. The Wakfs Boardfurther directed the Director for Mosques and Muslim CharitableTrusts or Wakfs to file a certificate in the Magistrate’s Court ofPuttalam in terms of section 15A(4) of the Act in Form XIII inSchedule B of the Muslim Mosques and Charitable Trusts andWakfs Regulations of 1982, with a view of recovering the said sumof Rs. 740,000/-from the petitioner-appellants in the event theyfailed to hand over the said sum of money in terms of the noticeserved on them under section 15A (2) of the Act. The saidregulations have been made by the Minister of Muslim Affairs undersection 54 of the Muslim Mosques and Charitable Trusts or Wakfs
Act and published in the Gazette Extraordinary bearing No. 342/8of 29th March 1985.
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It is expressly provided in section 15A (7) of the MuslimMosques and Charitable Trusts or Wakfs Act that “a decision of theBoard under subsection (2) shall be final and conclusive and shallnot be called in question in any court.” In my opinion, this provisionmay not have precluded the petitioner-appellants, if they so desired,from appealing from the said decision of the Wakfs Board dated11th November 2001 to the Wakfs Tribunal, as in terms of section9H (1) of the Muslim Mosques and Charitable Trusts or Wakfs Act"any person aggrieved by any order or decision made by the Boardmay within thirty days of such order or decision appeal in writing tothe Tribunal against such order or decision.” However, thepetitioner-appellants did not in fact lodge any appeal against thesaid decision of the Wakfs Board, and since they failed to pay anymoney in pursuance of the aforesaid decision of the Wakfs Board,the Director for Mosques and Muslim Charitable Trusts or Wakfsinitiated enforcement proceedings in the Magistrate’s Court ofPuttalam by filing a certificate in terms of section 15A (4) of theAct. When this matter was pending in the Magistrate’s Court ofPuttalam, the petitioner-appellants purported to file an applicationdated 18th November 2002 in the Wakfs Tribunal described as arevision application, seeking inter alia to set aside the order madeby the Wakfs Board on 11th November 2001. At the hearing beforethe Wakfs Tribunal a preliminary objection was raised to the effectthat under section 9 (H) of the Muslim Mosques and CharitableTrusts or Wakfs Act the Wakfs Tribunal has only an appellatejurisdiction but since it has no revisionary jurisdiction the applicationof the petitioner-appellants should be dismissed in limine.
Before taking up the matter for hearing, the Wakfs Tribunalmade order calling for the record of the case from the Walks Boardbut the Board refused to send the record to the Tribunal stating thatthe Wakfs Board has made its order under section 15A(2) of theMuslim Mosques and Charitable Trusts or Wakfs Act and that interms of Section 15A(7) of the Act it was not an ‘appealable order’.This compelled the Wakfs Tribunal to make its order based on thematerial supplied by the petitioner-appellants in their applicationand without the benefit of perusing the record maintained by theWakfs Board. The Wakfs Tribunal by its order dated 2nd August2003 upheld the preliminary objection and dismissed the application
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of the petitioner-appellants. In the said order the Wakfs Tribunal hastraced the background to this case and having considered severalauthorities reached the conclusion that the Wakfs Tribunal has norevisionary jurisdiction.
The petitioner-appellants have filed this application in theCourt of Appeal on 19th August 2003 seeking leave to appeal fromthe said order of the Wakfs Tribunal dated 2nd August 2003. It issubmitted on behalf of the respondent-respondents that thisapplication for leave to appeal is misconceived in law in as much asa final order of the Wakfs Tribunal attracts a direct appeal to theCourt of Appeal under section 55A of the Muslim Mosques andCharitable Trusts or Wakfs Act, and there is no provision in the Actfor filing a leave to appeal application. Section 55A of the Act isquoted below:-
“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 andjudgments of a District Court shall, Mutatis mutandis, apply toand in relation to appeals from orders of the Tribunal.”
The above provision was considered by this Court in Ameers/Special Trustees-Devatagaha Mosque and Shrink. In that casethe appellants filed a direct appeal from an order of the WakfsTribunal and the respondents raised a preliminary objection andcontended that a direct appeal does not lie and that the properremedy was by way of leave to appeal. The respondents relied onRegulation 37 of the Muslim Mosques and Charitable Trusts andWakfs Regulations of 1982, which reads as follows:-
“Any party aggrieved by any final order made by the WakfsTribunal may apply by petition to the Court of Appeal for leaveto appeal against any such order and shall give to the otherparty to the appeal notice of such application as may beprovided for by the Civil Procedure Code.”
The Court of Appeal noted that in terms of section 54 (4) of theMuslim Mosques and Charitable Trusts or Wakfs Act, everyregulation made by the Minister should as soon as convenient afterpublication in the Gazette be brought before Parliament forapproval, and that upon such approval such regulation acquires the
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same force and effect as a provision of the Act. Jayawickrama J.observed at page 316 of the judgment that “although theseregulations were Gazetted, they were never brought before
Parliament for approval Thus, it is very clear that these
regulations do not have any force or effect as they have not beenapproved by Parliament.” His Lordship then went on to uphold thecontention of the learned President’s Counsel who appeared forthe respondents in that case that as “the substantive Act itselfprovides a right of appeal under section 55A” regulations cannot beframed so as to take away such a right. His Lordship furtherobserved as follows at pages 318 to 319 –
“In the instant case, this appeal is not from an order made bythe Wakfs Board or Wakfs Tribunal in the course of any action,proceeding or matter. This appeal emanates from an orderwhich is the final expression of the decision of the WakfsTribunal. The order of the Wakfs Tribunal has the effect of afinal judgment in the instant case. In fact, the Wakfs Tribunal atpage 44 of the brief states that it is a “judgment of the WakfsTribunal in case No. W/TRIB/76 Dewatagaha Jumma Mosqueand Shrine”. The judgment consists of seven pages which is astatement given by the Wakfs Tribunal of the grounds for itsorder. Thus, it is very clear that this appeal had been preferredagainst a judgment in terms of section 754 (1) of the CivilProcedure Code …. I agree with the learned President’sCounsel that in the present instance, since the order is final innature a direct appeal has been correctly lodged as the orderappealed from finally disposed of the matter and as such is a‘judgment’.
Learned Counsel for the respondent-respondents rely heavilyon the decision of the Court of Appeal in this case, and submit thatin the light of this decision of this Court in this case, the leave toappeal application filed by the petitioner-appellants is totallymisconceived and should be dismissed in limine.
It is however necessary to observe that by 1st December 1998when the decision of this Court in Ameer v Special Trustees-Devatagaha Mosque and Shrine (supra) was pronounced, theregulations in question had in fact been placed before Parliamentand approved by Parliament on 14th September 1997.
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Furthermore, section 55A of the Muslim Mosques and CharitableTrusts or Wakfs Act in the context of the regulations made under theAct was considered once again by the Court of Appeal in Halwanand Others v Kaleelul Rahumad2). This was an application for theprerogative writs of certiorari and mandamus which was dismissedfor non-disclosure of material facts and for making a false avermentthat the jurisdiction of the Court of Appeal had not been previouslyinvoked. In fact, the petitioners had filed a leave to appealapplication in the Court of Appeal on the same day they filed the writapplication, and the application for leave to appeal having been 160submitted to a Judge as required by section 756(5) of the CivilProcedure Code and an order made that it should be supported inopen court within two weeks, was pending at the time when the writapplication was heard by this Court. The petitioners had also filed anotice of appeal in the Wakfs Tribunal from the order which wassought to be quashed, which notice had been rejected by theTribunal because a petition of appeal had not been filed within aperiod of 60 days. It is apparent that the petitioners had recourseto the leave to appeal procedure as well as the direct appeal as theydid not want to take any chances in view of the ambiguity in the 170language of section 54(4) of the Muslim Mosques and CharitableTrusts or Wakfs Act. His Lordship S.N.Silva, J. (as he then was)subjected section 54(4) of the Act to close scrutiny and concludedthat the appropriate procedure is the leave to appeal procedure,and that there was no question of filing a direct appeal under thesection. His Lordship observed at pages 55 to 56 of the judgment.
“This section contains two main elements. The first issubstantive in nature. It deems every order made by theTribunal to be an order made by a District Court. This willattract the provisions of section 23 of he Judicature Act and a isoparty dissatisfied with an order will have a right of appeal tothis court. The second element is procedural in nature and itstates that the provisions of the Civil Procedure Code ‘Shallmutatis mutandis apply to and in relation to orders of theTribunal.”
The submission of learned President's Counsel for thepetitioners is that the words preceding the foregoing wordsthat refer to the “the provisions of the Civil Procedure Code
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governing appeals from orders and judgments of a DistrictCourt” have the effect of introducing provisions in relation toboth types of appeals, namely, appeals from judgment andappeals form orders as found in the Civil Procedure Code.This submission ignores the basic division in the content ofthe section.The substantive element deems every order of theTribunal to be an order of a District Court, the proceduralelement cannot have the effect of introducing both appellateprocedures with regard to orders of a Tribunal. Statutoryprovisions should be interpreted so as.to remove possibleambiguity and not to introduce or advance an ambiguity. Thewords relied upon by learned President's Counsel should beconsidered in the light of the provisions of the Civil ProcedureCode that are made applicable and in the context of theremaining portions of the section and not in isolation.
On an examination of the provisions of the Civil ProcedureCode with regard to appeals it is seen that section 754(2) andsections 756 (2), (3), (4), (5), (6), and (7) apply exclusively inrelation to applications for leave to appeal from orders of anoriginal court. Sections 754 (1), (3) and (4) 755, 756 (1) and757 apply exclusively in relation to appeals from judgments ofthe original court. The other provisions are applicable inrelation to both types of appeals. For instance, section 758 (1)with regard to the contents of a petition is applicable to bothtypes of appeals. The provisions from section 765 to 767 withregard to appeals notwithstanding lapse of time apply to bothtypes of appeals. Similarly the provisions with regard tohearing of appeals in Chapter 61 are applicable to both typesof appeals. These provisions are thus applicable to orders andjudgments of an original court.
The effect of the words “mutatis mutandis appearing in section55A and referred to above is to make the relevant provisions ofthe Civil Procedure Code applicable with due alteration ofdetail. What is relevant has to be determined by thesubstantive element of the section which deems every order ofthe Tribunal to be an order of the District Court. Therefore theprovisions of the Civil Procedure Code that relate exclusivelyto appeals from any order of an original court and the common
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provisions with regard to appeals from any order and anyjudgement of such court, will apply mutatis mutandis, to andin relation to an appeal from an order of the Tribunal.”
I am inclined to agree with the reasoning adopted by this Court 230in Halwan and Others v Kaleelul Rahuman as it is manifest fromsection 55A that every order made by the Wakfs Tribunal is deemedto be an order made (as opposed to a judgment pronounced) by aDistrict Court, and I find that the said reasoning is also consistentwith Regulation 37. I therefore hold that the procedure adopted inthis case by the petitioner-appellants for the making of his appeal iscorrect, and that the application filed by them is not misconceivedin law.
The petitioner-appellants seek leave to appeal from this Courtagainst the order of he Wakfs Tribunal dated 2nd August 2003 240dismissing the application filed by them with a view of revising theorder of the Wakfs Board dated 11th November 2001 on the groundthat the Wakfs Tribunal has only an appellate jurisdiction undersection 9(H)(1) of the Muslim Mosques and Charitable Trusts orWakfs Act,and that it had no revisionary jurisdiction. The WakfsTribunal has in its order referred to two earlier decisions to thesame effect in Dahlan v Mahroof(3) (Colombo Grand Mosque case)and Aalim v Faik(4' (Thalapitiya Mosque case). In these cases theWakfs Tribunal was invited to exercise powers in revision on thebasis that regulation 44(1) of the Muslim Mosques and Charitable 250Trusts and Wakfs regulations of 1982 expressly recognizes therevisionary jurisdiction of the Wakfs Tribunal. Regulation 44(1) isquoted be low:-
“Enforcement – (1) Any order of the Tribunal in Appeal or byway of Revision or any order of the Board relating to therecovery of any movable or immovable property shall, in thefirst instance be executed in the manner provided for, by andunder section 15A of the Act and he sub-sections thereto.”(Italics added).
Learned Counsel for the petitioner-appellants relied heavily on 260the aforesaid regulation to buttress the argument that the WakfsTribunal was possessed of a revisionary jurisdiction. LearnedCounsel for the respondent-respondent submitted that there is no
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provision in the Muslim Mosques and Charitable Trusts or WakfsAct whch has sought to confer on the Wakfs Tribunal a revisionaryjurisdiction. When faced with similar arguments in Dahlan v Mahroot(Colombo Grand Mosque case) the Wakfs Tribunal observed in thecourse of its order in that case that “any substantive powerpossessed by the Tribunal cannot be enlarged by a regulation,because that would be ultra vires the Act” (Dahlan’s case (supra)at 3 to 4). I am in total agreeement with the aforesaid proposition oflaw.
Learned Counsel for the petitioner-appellant has emphasizedthat the Mulsim Mosques and Charitable Trusts and Wakfsregulations of 1982, and in particular regulation 44(1) thereof, hasbeen approved by Parliament on 14th September 1997 asenvisaged by section 54(4) of the Muslim Mosques and CharitableTrusts or Wakfs Act, and that as provided expressly in the aforesaidsection, upon such approval the said regulations “shall have thesame force and effect as a provision of this Act."Although LearnedCounsel for the petitioner-appellants sought to cure the invalidity ofthe regulation in question in this manner, I cannot accede to theproposition that any subordinate legislation enacted in excess ofpowers conferred by an Act of Parliament can be given legalvalidity through the process of subsequent adoption by Parliament.As Weeramantry, J. observed in K. Rambanda v River ValleysDevelopment Board ® at 37 and 38, in the context of certainregulations placed before Parliament and approved by it in terms ofsection 39(2) of the Industrial Disputes Act-
“It is indeed the undoubted right of a member to voice hisopposition to any regulation proposed, but it is doubtful thatsuch a regulation can obtain the same full consideration asthat given to a bill. Hence while in theory Parliament still reignsas the supreme law giver, a large volume of the law by whichthe subject is governed can well be passed into form not bythe power of Parliament considered will but by the drive ofexecutive urgency.
Against such a background, to view section 39(2) as a cloak ofvalidity which may be thrown around rules which in fact areultra vires would be to erode rather than protect the supremeauthority of Parliament. Regulations clearly outside the scope
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of the enabling powers and passing unnoticed in the heat andpressure of parliamentary business may then surviveunquestioned and unquestionable; and functionariesmanifestly exceeding their powers would thereby be able toarrogate to themselves a de facto legislative authority whichde jure belongs to Parliament alone. For the foregoingreasons I cannot subscribe to the view that the mere passageof a regulation through Parliament gives it the imprimature ofthe legislature in such a way as to remove it from the purview 310of the courts through the operation of section 39(2).”
The Constitution of Sri Lanka has provided varioussafeguards including a system of pre-enactment judicial review witha view of strengthening the Sovereignty of the People andprotecting their democratic rights. The suggestion that anysubordinate legislation enacted in excess of powers conferred by anAct of Parliament can be given legal vlidity through the process ofsubsequent adoption by Parliament overlooks these Constitutionalsafeguards.
Article 138(1) of the Constitution of Sri Lanka provides that- 320
“The Court of Appeal shall have and exercise subject to theprovisions of the Constitution or of any law, an appellatejurisdiction for the correction of all errors in fact or in law whichshall be committed by any Court of First Instance,tribunal orother institution and sole and exclusive cognizance,by way ofappeal, revision and restitutio in integrum, of all causes, suits,actions, prosecutions, matters and things of which such Courtof First Instance, tribunal or other institution may have takencognizance:”
In terms of the aforesaid Article, the Court of Appeal has 330exclusive cognizance by way of revision of all causes, suits,actions, prosecutions, matters and things of which any court of firstinstance, tribunal or other institution may have taken cognizance. Itis clear from the opening words of Article 138(1) of the Constitutionthat a Court or Tribunal may be conferred a revisionary jurisdictiononly by provision of the Constitution or of any other law. An exampleof a Constitutional conferment of revisionary jurisdidction is found inArticle 154P (3) of the Constitution, whereby the High Court of the
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Province has been given a revisionary jurisdiction in respect ofconvictions, sentences and orders entered or imposed byMagistrates Courts and Primary Courts wiithin the Province. Anexample of a conferment of revisionary jurisdiction by an ordinaryAct of Parliament is found in sections 43 and 44 of he MuslimMarriage and Divorce Act No. 13 of 1951, as subsequentlyamended, whereby the Board of Quazis has the power to reviseorders made by Quazi Courts. It is however, not possible in viewof Article 138(1) of the Constitution to confer a revisionaryjurisdiction through subordinate legislation, and in particular wherea regulation purported to have been made under a parent Act isfound to be ultra -vires the provisions of the parent Act. This is soeven if the Court invited to exercise revisionary jurisdiction is theapex Court in our judicial hierarchy. In Ganeshanathan vGoonewardene®, the Supreme Court held that it had no power toact in revision. In that case, Ganeshanathan sought relief from theSupreme Court in the exercise of the revisionary and inherentpowers of the Court. His complaint was that another Bench of theCourt had, to his detriment, acted per incuriam for the severalreasons set out in his application. Samarakoon, CJ referred to thevarious provisions of the Constitution conferring jurisdiction on theSupreme Court and observed as follows at pages 327 and 328 ofhis judgement-
“None of the provisions expressly conferring jurisdiction whichI have cited above gave this Court a jurisdiction to revise itsown decisions. Nor has the Legislature acting in terms ofArticle 118 (g) conferred such a jurisdiction by law…. I hold thatthis Supreme Court has no jurisdiction to act in revision incases decided by Itself.”
Justices Sharvananda, Wimalaratne, Colin Thome, andWanasundara agreed with the decision of the Chief Justice and thatGaneshanathan’s application should be refused as the SupremeCourt did not enjoy a revisionary jurisdiction. Although Ranasinghe,J. and Rodrigo, J.dissented, they sought to grant relief prayed for byGaneshanathan, not in the exercise of the revisionary jurisdiction ofthe Court, which was held by the majority of the Judges to be non-exisent, but in the exercise of the Court’s extraordinary inherentjurisdiction. In regard to the revisionary jurisdiction of the Supreme
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Court, Ranasinghe, J. commented at page 357 of his judgementthat-
“The Supreme Court, as constituted under the 1978Constitution is not vested with the revisionary powers as 380exercised by the Supreme Court under the Courts Ordinance.
The Supreme Court’s Appellate jurisdiction is set out in Articles127 and 128 of the 1978 Constitution. The jurisdiction of theCourt of Appeal is set out in Article 138 of the 1978 Constitutionand this Article confers on the Court of Appeal “sole andexclusive cognizance, by way of appeal,revision and resitutioin integrum of all causes,suits, actions, prosecutions,mattersand things of which such court of First Instance, Tribunal orother institution may have taken cognizance".
It is therefore manifest that the Wakfs Tribunal has no 39cjurisdiction to act in revision,and that the Tribunal acted properly inrefusing to exercise jurisdiction in this case.
While the above reasons are sufficient to conclude this matter,
I wish to observe that in this case the petitioner-appellants wereseeking to set aside an order made by the Wakfs Board undersection 15A(2) of the Muslim Mosques and Charitable Trusts orWakfs Act which is declared in section 15A(7) of the said Act to be“final and conclusive”. While this provision may not have precludedthe petitioner-appellants, if they so desired, from appealing from thesaid order to the Wakfs Tribunal under section 9H(1) of the Act, it 400would certainly stand in the way of the Wakfs Tribunal reviewing thesaid impugned decision of the Wakfs Board, particularly in view ofsection 22 of the Interpretation Ordinance, No.21 of 1901, assubsequently amended. Furthermore, the petitioner-appellantshave filed this application in the Wakfs Tribunal after the lapse of aperiod of more than one year from the date of the order of theWakfs Board without giving any explanation regarding their failureto appeal against the order in question.
For the foregoing reasons, Court refuses leave to appeal anddismisses the application. There shall be no order for costs in all the *10circumstances of this case.
SRISKANDARAJAH, J. – I agreeApplication dismissed.