Madras High Court
B.Abdul Kather vs Tamil Nadu Wakf Board on 11 April, 2023
Writ Petition No.5622 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.04.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Writ Petition No.5622 of 2023
and
W.M.P.Nos.5651 & 5654 of 2023
B.Abdul Kather
S/o.Baba John ... Petitioner
Vs.
1.Tamil Nadu Wakf Board,
represented by its Chief Executive Officer,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai - 600 001.
2.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai - 600 001.
3.The President,
Hazerath Nabi Sallallahu Allaihi O
Sallam Fathiha Wakf,
Trichy District, Trichy - 620 001. ... Respondents
1/9
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Writ Petition No.5622 of 2023
Prayer : Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records in
connection with the resolution and order passed by the respondents in Serial
No.134 of 2022, Na.Ka.No.10996/03/A5/Trichy, dated 13.07.2022 and
Che.Mu.Aanai.10996/03/A5/Trichy, dated 08.08.2022 and quash the same
and consequently, direct the respondents to appoint the new trustees to the
Hazarath Nabi Sallalaho Allaihi O Sallam Fatihah Wakf as per the scheme
decree dated 05.08.1954 made in O.S.No.44 of 1952 on the file of I
Additional Sub Court, Trichy and modified by the Division Bench of this
Court dated 25.10.1960 in A.S.No.666 of 1954.
For Petitioner : Mr.Y.Kaja Navas
For Respondents : Mr.G.Mohamed Aseef
*****
ORDER
The petitioner, who is one among the descendants of the Wakif
through the female line, is aggrieved by the proceedings of the first
respondent dated 08.08.2022, wherein the first respondent has effected
certain modifications to the scheme decree that was passed in O.S.No.44 of
1952 by the I Additional Sub Court, Trichy.
2. The case of the petitioner is that the wakf, viz., Hazarath Nabi
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Writ Petition No.5622 of 2023
Sallalaho Aleichi O Sallam Fatihah Wakf, is a registered wakf bearing
No.609/Trichy. The said wakf was administered as per the scheme decree
passed in O.S.No.44 of 1952 by the I Additional Sub Court, Trichy, dated
05.08.1954 and which was subsequently confirmed by the Division Bench
of this Court in A.S.No.666 of 1954 by judgment and decree dated
25.10.1960. The scheme decree provided for appointment of trustees.
According to the petitioner, one among the descendants of the wakif
through the female line is also entitled to be appointed as trustee and the
petitioner falls under that category.
3. The grievance of the petitioner is that the first respondent through
the impugned proceedings dated 08.08.2022 had modified the scheme
decree and one such modification that was suggested to be implemented by
the first respondent was that the trustees must come only from the male
descendants and the descendants of the wakf through the female line was
sought to be completely removed. Aggrieved by the same, the present writ
petition has been filed before this Court.
4. Heard Mr.Y.Kaja Navas, learned counsel for petitioner and
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Writ Petition No.5622 of 2023
Mr.G.Mohamed Aseef, learned counsel for respondents.
5. The main issue that arises for consideration in the present writ
petition is as to whether the Tamil Nadu Wakf Board has powers to cancel
or modify the terms of the scheme formed by a competent civil Court. To
arrive at a conclusion on this issue, certain provisions under the The Waqf
Act, 1995 (hereinafter referred to as 'the Act') must be considered.
6. Section 32 of the Act provides for the powers and functions of the
Board. Section 32(2)(d) of the Act gives powers to the Board to settle
schemes of management of a wakf. This power is directly linked to Section
69 of the Act. The Board on its own motion or on application made by
interested persons in any wakf, after conducting an enquiry, can frame a
scheme for proper administration of the wakf by passing appropriate orders.
Section 69(4) of the Act provides that the Board from time to time can pass
orders and thereby can cancel or modify the scheme framed by the Board. A
combined reading of Sections 32 and 69 of the Act makes it clear that the
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Writ Petition No.5622 of 2023
Wakf Board has wide powers insofar as cancelling or modifying the scheme
that are framed by the Wakf Board. Section 69(4) of the Act is the power
that has been traced by the first respondent while issuing the impugned
proceedings dated 08.08.2022.
6. The question is as to whether the Board can exercise such powers
where the scheme is settled by an order of the competent civil Court. The
Wakf Board can trace its powers only from the Act and not beyond it.
Therefore, the Act itself should provide the power to the Board to modify or
cancel the terms of the scheme settled by a competent civil Court. No such
power has been given under the Act and Section 69(4) of the Act will not
come to the aid of the Board to modify or cancel the terms of the scheme
settled by a civil Court.
7. In the present case, there is no dispute with regard to the fact that
the scheme was settled by a competent civil Court in O.S.No.44 of 1952 in
the year 1954 and it was subsequently confirmed by this Court in
A.S.No.666 of 1954 by judgment and decree dated 25.10.1960.
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Writ Petition No.5622 of 2023
8. On carefully going through the provisions of the Act, there is only
one provision which enables the State Government to modify the scheme
even where such scheme was settled by a decree or an order passed by a
Court. For this purpose, Section 66 of the Act is extracted hereunder:
"66. Powers of appointment and removal of mutawalli
when to be exercised by the State Government. - Whenever a deed
of waqf or any decree or order of a Court of any scheme of
management of any waqf provides that a Court or any authority other
than a Board may appoint or remove a mutawalli or settle or modify
such scheme of management or otherwise exercise superintendence
over the waqf, then notwithstanding anything contained in such deed
of waqf, decree, order or scheme, such powers aforesaid shall be
exercisable by the State Government:
Provided that where a Board has been established, the State
Government shall consult the Board before exercising such powers."
9. Even though the nomenclature of the above provision sounds as if
it deals only with the appointment and removal of a mutawalli, on carefully
going through the provision, it can be seen that it covers a wider spectrum
of even the management and superintendence of a wakf governed by a
scheme. Such a power has been given only to the State Government. The
proviso to the said provision also suggests that the State Government will
consult the Wakf Board while exercising such powers.
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Writ Petition No.5622 of 2023
10. In the light of the above provision, if at all any modification or
cancellation of the terms of the scheme is desired, such power should be
exercised only by the State Government with the consultation of the Wakf
Board. Even while undertaking this exercise, if any person will be aggrieved
by the modification or cancellation of the terms of the scheme, he must be
put on notice and he must be heard before the modification or cancellation
of the terms of the scheme. Thus, the principles of natural justice will have
to be necessarily read into the above provision.
11. In the light of the above discussion, this Court finds that the
impugned proceedings of the first respondent in
Che.Mu.Aanai.10996/03/A5/Trichy, dated 08.08.2022, is liable to be
quashed. If at all any attempt is made to modify the scheme, it can only
emanate from the State Government after consultation with the wakf. If
such a step is taken, it goes without saying that the persons interested must
be put on notice and they should be heard before passing final orders.
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Writ Petition No.5622 of 2023
In the result, this Writ Petition stands allowed. No costs.
Consequently, connected miscellaneous petition is closed.
11.04.2023
Index : Yes
Speaking Order / Non Speaking Order
Neutral Citation: Yes
gm
To
1.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai - 600 001.
2.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai - 600 001.
3.The President,
Hazerath Nabi Sallallahu Allaihi O
Sallam Fathiha Wakf,
Trichy District, Trichy - 620 001.
https://www.mhc.tn.gov.in/judis
Writ Petition No.5622 of 2023
N. ANAND VENKATESH, J
gm
Writ Petition No.5622 of 2023
11.04.2023
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