005-NLR-NLR-V-66-M.M.H.M.A.-CADER-and-others-Petitioners-and-COMMISSIONER-FOR-MOSQUES-AND-MU.pdf
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Coder v. Commissioner for Mosques and Muslim Charitable Trusts
1963Present: Herat, J.
M. M. H. M. A. CADER and others, Petitioners, and COMMISSIONERFOR MOSQUES AND MUSLIM CHARITABLE TRUSTS and others,
Respondents
. S. C. 55/63—Application for a Writ in the nature of Mandamus under
Section 42 of the Courts Ordinance
Muslim Mosques and Charitable Trusts or Wahfs Act No. 51 of 1956, as amend-ed by Act No. 21 of 1962—Sections 2 (1), 5 (2), 9(1) (2) (3), 14 (1), 14 (2) (a)—.Appointment of trustees of mosques—Duty of Wahfs Board to exercisediscretion personally—Mandamus.
In selecting a person or persons for appointment as trustee or trustees ofa mosque under section 14 of the Muslim Mosques and Charitable Trusts orWakfs Act, the discretion of the Wakfs Board has to be exercised personallyand cannot be abdicated by the Board in favour of anyone else, howevercompetent, honourable or efficient that person may be as regards the matter.
Any appointment made by the Board as the result of selection by someoneelse is only a colourable appointment and is not an appointment at all. In sucha case, section 14 (1) (a) of Act No. 21 of 1962 is not a bar to compel theBoard, by writ of mandamus, to appoint a trustee or trustees according to law.
t
Application for a writ of mandamus against the Commissionerfor Mosques and Muslim Charitable Trusts and the Wakfs Board.
H. V. Per era, Q.C., with Izadeen Mohamed, A. C. M. Vvais andM. T. M. Sivardeen, for the Petitioners.
M. Kanagasundaram, Crown Counsel, for the 1st Respondent.
R. L. N. de Zoysa, for the 2nd Respondent.
1 Colvin R. de Silva, with A. Wijesehera^ for 3, 4, 5, 6, 7 and 9thRespondents.
M. H. Amit, for the 8th Respondent.
C. Ranganathan, with M. S. M. Nazeem, for the 10th to 28th and■30th Respondents.
A. R. Mansoor, for the 29th Respondent.
Cur. adv. vult.
HERAT, J.—Gader v. Commissioner for Mosques and
Muslim Charitable Trusts
17
October 11, 1963. Hekat, J.—
This application for a Writ of Mandamus involves the interpretationof certain provisions of the Muslim Mosques and Charitable Trusts orWakfs Act No. 51 of 1956, as amended by Muslim Mosques and CharitableTrusts or Wakfs (Amendment) Act No. 21 of 1962.
By Section 2 (1) of the 1956 Act, hereinafter called the principal Act,there is provision for the appointment of a Commissioner. Section 2 (1)of the principal Act is as follows :—“ There may be appointed for thepurposes of this Act a Commissioner for Mosques and Muslim CharitableTrusts or Wakfs and such number of Deputy Commissioners for Mosquesand Muslim Charitable Trusts or Wakfs and other officers and servantsas may be necessary. Such Commissioner, Deputy Commissionersand other officers and servants shall be servants of the Crown in respectof the Government of Ceylon.
(2) A person who is not a Muslim shall not be appointed as theCommissioner or as a Deputy Commissioner.”
Section 5 (1) of the principal Act is as follows:—“There shall beestablished for the purposes of this Act a board which shall be calledthe Mosques and Muslim Charitable Trusts or Wakfs Board and whichshall consist of the Commissioner and seven other members appointedby the Minister.”
Section 9 (1) (2) & (3) of the principal Act provides as follows :—
“ The Commissioner shall preside at every meeting of the board
at which he is present. If the Commissioner is absent from anymeeting of the board, the members present at the meetingshall elect one of them to preside at the meeting.
The quorum for a meeting of the board shall be three members.
The Commissioner shall not be entitled to vote at a meeting of
the Board, unless there is an equality of votes.”
The Act provides for the registration of Mosques and other MuslimCharitable Trusts or Wakfs and by Section 14 as amended by theAmending Act No. 21 of 1962 provides as follows :—
14 (1) “As soon as may be, after a mosque has been registered underSection 13, the board shall appoint a person or persons from amongMuslims to be a trustee or trustees of that mosque and issue to everyperson so appointed as a trustee an instrument of appointment. Inselecting a person or persons for appointment as a trustee or trusteesof a mosque the Board shall have regard to the following matters :—
(а)the terms of any trust instrument relating to that mosque ;
(б)the religious law and custom of the sect of the Muslim community
concerned ;
the local custom with reference to that mosque ; and
the practice and other arrangements in force for the adminis-
tration of the mosque.”
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HERAT, J.—-Cader v. Commissioner for Mosques and
Muslim Charitable Trusts
Section 14 (1) (a) is as follows :—
“ The Board may at any time after the appointment of a person astrustee of a mosque revoke his appointment if it is satisfied that suchappointment was made by reason of a mistake of law or of fact.
Where the Board decides to revoke the appointment of any personas a trustee it shall by notice in writing addressed to such person—
inform him of the revocation of his appointment as trustee, and
require him to return to the Board the instrument of appoint-
ment issued to him,
and upon receipt of such notice such person shall comply with suchrequirement. ’ ’
This application relates to the Kalmunaikudy Jumma Mosque andit is common ground that after prolonged investigations and corres-pondence that mosque was registered under the provisions of the afore-said Act of 1956. The 1st respondent to the present petition is theCommissioner appointed under the provisions of Section 2 (1) of theprincipal Act and is the President of the Mosque and Muslim CharitableTrusts or Wakfs Board referred to above by virtue of his office. The3rd to 9th respondents are members of the said Board which I shallrefer to as the Wakfs Board.
After the registration of the Kalmunaikudy Jumma Mosque it becamethe public duty of the members of the Wakfs Board, under Section 14of the principal Act as amended by the Amending Act, to exercise astatutory duty laid upon them by the said Section to appoint a trusteeor trustees for that mosque and in the language of that Section to selecta person or persons for appointment as such trustee or trustees.
In my opinion this was a duty which they themselves had to perform.No doubt the members of the Wakfs Board had a discretion in selectingthe trustee or trustees, the only requirement laid down being that theselection should be from among Muslims, but that discretion had to beexercised by the members of the Board personally.
In exercising that discretion they could not abdicate their judgmentin favour of anyone else however competent, honourable or efficientthat person may be as regards the matter. If the selection was madeand the consequent appointment followed as a result of the judgmentexercised by someone else other than the Wakfs Board then such selectionand appointment is no appointment in law. It is, to use the phraseoften used in matters of this nature, a colourable selection and a colourableappointment and in law it is no selection and no appointment.
In my opinion, when one peruses the affidavits filed in this case, thisis what appears to have been done. The Wakfs Board having spent along time in dealing with the question of the registration of the mosqueultimately wrote to three gentlemen, who are prominent Muslims of thearea, asking for their assistance in the matter of the appointment of
HERAT, J.—Coder v. Commissioner for Mosques and
M’uslim Charitable Trusts
19
trustees. One of those gentlemen was the 21st respondent, Mr. M. C.Ahamed, Member of Parliament. The assistance and help expecteddid not materialise and the interviews called for did not in fact takeplace but the 21st respondent forwarded a list of names includinghimself as choice individuals for appointment as trustees of the mosquein question. The Wakfs Board appointed these persons and thesetrustees so appointed are the 10th to 29th respondents. The 2nd res-pondent is the same as the 1st respondent, the Commissioner, but forthe sake of caution he has been made respondent twice over, once in hisofficial capacity as Commissioner and again in his capacity as Chairmanof the Wakfs Board.
The petitioners are some of the members “Jamna’ ath” of the mosquein question, namely some of the persons who ordinarily worship or <participate in the religious rites and ceremonies of that mosque. Theircase is that the so called appointment of the 10th to 29tb respondentsas trustees by the Wakfs Board is only a colourable appointment andis no appointment in law. They say that the members of the WakfsBoard have failed to carry out their public statutory duty to appointtrustees to the Kalmunaikudy Mosque and they ask this Court to issuea Writ of Mandamus ordering the Board to carry out that duty.
have perused the affidavits filed in these proceedings and alsocarefully read the correspondence placed before me and I am satisfiedthat the members of the Wakfs Board did not,bring their own mindsto bear upon the question of suitability of the candidates for appoint-ment to the high office of trustees of the mosque. The law requiredthem to appoint not mere hewers of wood and drawers of water butpersons of high integrity who would be called upon to perform fiduciaryduties which trustees are called upon to perform. They had no businessto surrender their judgment to anybody else. What the members of theWakfs Board appear to have done in this case is, simply as I said earlier,to abdicate their duty of exercising judgment and discretion in favourof the 21st respondent, Mr. Ahamed, Member of Parliament, and appoint-ing himself and the other respondent trustees as trustees. This is merelya colourable appointment and in my opinion no appointment at all.
It has been argued that this application for Mandamus does not liebecause of the provisions of the new Section 14 (1) (a) but this newsub-section (1) (a) to Section 14 contemplates a real appointment madeby the Wakfs Board but contaminated by reason of a mistake of factor law. In the present case there is no appointment at all, hence thisis not an instance where the statute itself provides for an alternate remedy.
therefore come to the conclusion that the Writ of Mandamusshould issue.
hold that the so called appointment of the 10th to 29th respondentsas trustees is only colourable and no appointment and that the WakfsBoard, namely the 2nd to 9th respondents, have failed to carry outtheir public statutory duty of appointing a trustee or trustees to theKalmunaikudy Jumma Mosque.
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Wimaladasa v. Fernando
I direct that a Writ of Mandamus be issued on the 2nd to 9th res-pondents directing and ordering them to carry out their public statutoryduty under Section 14 of the Muslim Mosques and Charitable Trusts orWakfs Act No. 51 of 1956 as amended by Act No. 21 of 1962to appoint a trustee or trustees to the Kalmunaikudy Jumma Mosqueaccording to law.
There remains the question of costs. I order no costs against the1st and 2nd respondents, who are really one and the same person, namelythe Commissioner. The 8th respondent, who is a member of the WakfsBoard, dissociated himself with the actions of the fellow members of hisBoard from the very commencement and I do not think that costsshould be ordered against him. 1 order the 3rd to 9th respondents,except the 8th, to jointly and severally pay to the petitioners one set ofcosts which I fix at 250 guineas. The 29th respondent also dissociatedhimself with any claim to be a trustee and I do not think it fair that the29th respondent should be ordered to pay any costs. I order the lOtbto 28th respondents jointly and severally to pay another and separateset of costs to the petitioners which I fix at 250 guineas.
Apjylication allowed.