019-SLLR-SLLR-2000-V-2-SHERIFF-AND-OTHERS-v.-JAMALDEEN.pdf
SHERIFF AND OTHERS
v.JAMALDEEN
COURT OF APPEAL.
DE SILVA, J.
WEERASURIYA, J.
CA 03/96.
WAKFS TRIBUNAL No. W/TRIB/66.31^ JULY. 1998.
28th SEPTEMBER, 1998.
Muslim Mosques and Charitable Trusts Act (Wakfs Act). S.9E(3) S.29(l).
S.39(l)(2) – Trustees seeking a declaration that they are vested with andentitled to the land – Certificate from Director ■ Whether it is mandatory?
Held :
The right of five or more persons to institute proceedings in theDistrict Court in terms of S.39(l) or the right to institute proceedings inthe Wakfs Tribunal in terms of S.29(l) and S.9E(2) is preceded by acondition that such plaint or application before the District Court orWakfs Tribunal, as the case may be requires to be accompanied by aCertificate by the Director that such plaint or application as the case maybe, has been approved by the Board.
It is a “Sine qua non" for persons interested in the trust or mosqueto obtain a certificate from the Director, if they wish to invoke thejurisdiction of the District Court/Wakfs Tribunal.
M. Markani withM.I.M. Jauffer for Plaintiff Respondent.
T.M. Abbas for Defendant Respondent.
Cur. adv. uult.
December 11. 1998.
WEERASURIYA, J.The 1st and 2nd plaintiff-appellants by plaint dated25. 10. 94, claiming to be trustees of the Muslim charitableTrust or Wakf, established by Wakfs deed No. 3484 dated16. 12. 43, attested by John Wilson, Notary Public, instituted
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proceedings against the defendant-respondent seeking adeclaration that they are vested with and entitled to all the landand premises bearing No. 28, Hulftsdorp Street, Colombo 12,morefully described in the schedule to the plaint, ejectmentof the defendant-respondent therefrom and damages.Thereafter, the plaint was amended by adding 3rd-5,h plaintiff-appellants as presently constituted.
On 14. 10. 95, learned Counsel for the defendant-respondent raised a preliminary objection in regard to themaintainability of the plaint on the ground that a certificate asraised under Section 29 of the Muslim Charitable Trusts orWakfs Act has not been attached to the plaint. Upon theapplication of the parties, Wakfs Tribunal allowed writtensubmission to be tendered and the Tribunal by its order dated29. 07. 95 upholding the objection raised by the defendantrespondent, dismissed the application of the plaintiff-appellants. It is from the aforesaid order of the Tribunal thatthis appeal has been lodged.
At the hearing of this appeal, the case of the plaintiff-appellants was presented on the following basis namely:
that the Wakfs Tribunal has misdirected itself byholding that Section 39(2) compels the plaintiff-appellants to obtain a certificate from the Director;
that the Wakfs Tribunal has erred by holding thataccording to Section 9E(3) the certificate of theDirector was a mandatory requirement.
The contention of learned Counsel for the plaintiff-appellants that the Wakfs Tribunal has misdirected itself onthe applicability of Section 39(2) was based on the followinggrounds:
That section 39(2) would apply only to actions filedin the District Court.
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That no section under Part V of the Act requires acertificate from the Director to accompany a plaintfiled in the Wakfs Tribunal.
That provisions of section 29(1) and 29(7) as amendedhave no application to this case.
Section 39( 1) of the Muslim Mosques and Charitable Trustor Wakfs Act as amended by Act No. 33 of 1982 deals with thepower to institute action in the District Court of the district inwhich the whole or any part of the subject matter of the trustor wakf is situated to obtain a decree providing for both oreither of the following namely:
enumerating the properties comprised in the trust orwakf; and
granting such relief as the circumstances of the casemay require.
Section 39(2) however provides that no action other thanaction instituted by the Director shall be entertained by theDistrict Court unless the plaint is accompanied by certificateunder the hand of the Director that the action has beenapproved by the Board. In the circumstances, it is to beobserved that Part V of the Act incorporating Sections 32-42deal with matters relating to jurisdiction of District Court andmatters relating thereto. It is manifest that provisions ofSection 29(1) to Section 29(5) stipulate the conditions and themanner for suspension and removal of trustees by the Boardfor acts of misfeasance, breach of trust, neglect of duty orfailure to comply with the provisions of the Act.
Further, Section 29(7) as amended prohibits anyapplication to the Wakfs Tribunal other than by the Directorto be entertained unless the same is accompanied by acertificate under the hand of the Director that the applicationhas been approved by the Board. Thus, one is justified inasserting that these provisions have no relevance to theinstant case.
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Learned Counsel for the plaintiff-appellants contendedthat plaintiff-appellants base their case in terms of Section 9Jand that a certificate from the Director is totally unnecessary.However, it is to be observed that Section 9J provides theWakfs tribunal to have exclusive jurisdiction to inquire intomatters relating to Muslim Charitable Trust or Wakfs asprovided for by Section 9E{1). Nevertheless, one has tobe mindful that Section 9E(1) encompasses an inclusiveprovision.
The Muslim Mosques and Charitable Trust or Wakfs Actas amended provide for the appointment of a Director andsuch number of Deputy Directors as may be necessary anda Board consisting of the Director and seven membersappointed by the Minister.
It is convenient at this stage to consider the positionthe Director is placed with, in regard to the institution ofproceedings in the District Court and Wakfs Tribunal.
Section 39(1) empowers the Director upon a directiongiven by the Board in that behalf in respect of a MuslimCharitable Trust or Wakf to institute action in the DistrictCourt to obtain relief as provided for in Section 39( l)(a) and (b).
Section 29(6) lays down that the Director upon directionissued by the Board in that behalf in respect of a registeredmosque may as against a trustee of that mosque make anapplication to the Tribunal for an order seeking relief asprovided for in Section 29(6)(a)-(d).
Section 9E(2) authorises the Director upon a directiongiven by the Board in that behalf to make an application inrespect of a Muslim Charitable Trust or wakf to the WakfsTribunal for relief in terms of Section 9E(l)(a)-(i).
Nevertheless, it is relevant to note that any five or morepersons interested in the Muslim Charitable Trust or Wakfhave been given the option to institute proceedings, seekingrelief in the District Court or Wakfs Tribunal as the case may
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be. Thus, Section 39(1) permits any five persons interested inthat trust or wakf to institute action to obtain a decree in termsofSection 39(l)(a) and (b). Section 29(1) lays down that any fivepersons interested in that mosque may as against a trustee ofthat mosque make an application to the Wakfs Tribunal for anorder in terms of Section 29(l)(a)-(d). Further section 9E(2)permits any five or more persons interested in that trust orWakf to make an application to the Waifs Tribunal seekingrelief in terms of Section 9E(l)(a)-(I).
It is a remarkable feature of these sections that the rightof five or more persons to institute proceedings in the DistrictCourt in terms of Section 39(1) or the right to instituteproceedings in the Wakfs Tribunal in terms of Sections 29(1)and Section 9E(2) is preceded by a condition that such plaintor application before the District Court or the Wakfs tribunalas the case may require, be accompanied by a certificate by theDirector that such plaint or application as the case may be, hasbeen approved by the Board. In fact, in all these provisions.District Court or the Wakfs Tribunal is precluded fromentertaining such plaint or application as the case may beunless the same is accompanied by a certificate from theDirector, Thus, it is a sine qua non for persons interested in thetrust or mosque to obtain a certificate from the Director if theywish to invoke the jurisdiction of the District Court or WakfsTribunal as the case may require.
Learned Counsel for the plaintiff-appellants contendedthat the requirement of issuing a certificate by the Directorwould amount to an inquiry held by the Tribunal of firstinstance and therefore contrary to the provisions of Section 9J.This contention of learned Counsel for the plaintiff-appellantis untenable for the reason that Section 9E(1) which providesfor the general powers of the Tribunal and application for reliefin terms of such powers are qualified by the provision ofSection 9E(3) which imposes a mandatory requirement for anapplication other than by the Director, to be entertained by theTribunal only where it is accompanied by a certificate from theDirector that the application has been approved by the Board.
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Therefore, I am unable to accede to the proposition oflearned Counsel for the plaintiff-appellants that a certificatefrom the Director in matters relating to Muslim CharitableTrust or Wakf is totally unnecessary.
For the foregoing reasons. I dismiss this appeal with costsand affirm the order of the Wakfs Tribunal dated 29. 07. 95.
J. A. N. DB SILVA J. I agree.
Appeal dismissed.