M SYED MASOOD Vs. TAMIL NADU WAKF BOARD

JUDGEMENT

(1.) The facts giving rise to the present writ petitions briefly stated are as follows : - Petitioner in these two writ petitions are brothers. It is claimed that they are members of fourth respondent wakf. In respect of the aforesaid wakf, in O.S.No.5/1942, a Scheme was framed under which Muthavalli of Aloor Muslim Samudhaya Committee is required to maintain a Marriage Register known as Nikah Register and the Muslims who reside in Aloor Village and marry within the jurisdiction of the Aloor Muslim Samudhaya Committee, are entitled to have their names entered in the Nikah Register. For the aforesaid purpose, a male member of the family is required to approach the Jamath to obtain an application form on payment of contribution and thereupon making endorsement and certification that the person belongs to Jamath, an extract of the marriage register is issued. It is stated that such a person is also entitled to other benefits including the benefit of participation in Muslim functions, festivals and also have the right in the burial ground. It appears that a suit has been filed by the fourth respondent against the petitioner claiming permanent injunction and such suit is being contested by the petitioner on the ground that the disputed property belongs to the petitioner and his other family members. While the matter stood thus, the marriage of the petitioners sister was fixed in July, 1999, but the petitioners family came to understand that 4th respondent was refusing to accept the donation and produce the Nikah Register for the purpose of entering the marriage. Thereafter notice was issued to 4th respondent with a copy to the first respondent, namely, Wakf Board, and the first respondent passed an order asking the Wakf Inspector, 3rd respondent, to ensure the production of Nikha Register on 12.7.1999. However, since 4th respondent refused to produce the Nikha Register, the sister of the petitioner filed W.P.No.13105 of 1999 for the issuance of writ of Mandamus directing the respondents 1 to 3 to enforce the order of the 1st respondent. The aforesaid writ petition was disposed of with the following observations :- . . The Learned counsel for the fourth respondent contended that the first respondent has no jurisdiction to issue such directions to th third respondent and the same will not bind the fourth respondent. When admittedly the fourth respondent has registered the marriages of the other two sisters of the petitioner, there cannot be any excuse for the fourth respondent at this stage to refuse the registration of the petitioners mariage. As rightly contended by the learned counsel for the petitioner that the refusal to produce the Nikah Register by the fourth respondent is only due to the pendency of the Civil suit against the petitioners brother and this is clear when the counsel for the fourth respondent represented that the family of the petitioner squating of the Wakf property and refused to vacate the same and as such the fourth respondent is not bound to produce the Nikah Register. The fourth respondent has failed to consider that the property dispute between the Wakf authorities and the petitioners brother is independent and the same cannot have any bearing with regard to the registration of the marriage of the petitioner. When the refusal to produce the Nikah Register is a deliberate one, I am of the view that the fourth respondent has necessarily to be directed not only to produce the Nikah Register, but also to register the marriage of the petitioner which is to take place on 22-08-99. Hence the fourth respondent is hereby directed to carry out the instructions of the first respondent dated 5-07-99 not only to produce the Nikah Register but also to register the petitioners marriage on 22nd August, 1999. Issue copy of this order to the respective counsel today and the counsel for the respondents are directed to receive the same and instruct their clients to carry out the directions of this court on 22-08-99 without fail. With the above directions, the writ petition is disposed of. Thereafter when the question of the petitioners mariage was involved, a request was made to fourth respondent, but the fourth respondent has refused to issue application form. Accordingly a request was made to the Wakf Inspector, third respondent, who after referring to the order of the High Court in W.P.No.13015 of 1999 which related to the petitioners sister, directed 4th respondent to issue marriage application form and to register the marriage. However, since 4th respondent refused to act, the petitioner was forced to file the present writ petition.

(2.) The connected writ petition has also been filed on similar assertion by another brother of the petitioner in W.P.No.4566 of 2001.

(3.) In the counter affidavit filed on behalf of the fourth respondent it has been indicated that the petitioners are not the original inhabitants of the village and their father had been appointed by the fourth respondent to do the work of barber and they are not entitled to be considered as members of the Jamath. It has been further indicated that no writ of Mandamus would be maintainable against the fourth respondent, which is not a public authority. The claim of the petitioners that they were paying subscriptions, etc., have been denied.