Madras High Court
Mohammed Abusali vs The Chief Executive Officer on 21 June, 2023
WA No.1129 and 2023
and WP No.15585 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.06.2023
CORAM
THE HON'BLE MR.SANJAY V.GANGAPURWALA , CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
WA No.1129 and 2023
and
WP No.15585 of 2023
W.A.No.1129 of 2023:
Mohammed Abusali ... Appellant
Vs
1.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar, Chennai
2.K.Mohamed Mariyam Gani
rep. By power agent
S.M.Sheik Dawood ... Respondents
Prayer: Writ appeal filed under Clause 15 of the Letters Patent to set
aside the order dated 13.04.2023 in WP No.35012 of 2022.
WP No.15585 of 2023
Mohammed Abusali ... Petitioner
Vs
1.The Chief Executive Officer
Tamil Nadu Wakf Board
No.1, Jaffar Syrang Street
Vallal Seethakathi Nagar
Chennai -1.
Page 1 of 8
https://www.mhc.tn.gov.in/judis
WA No.1129 and 2023
and WP No.15585 of 2023
2.The Tamil Nadu Wakf Board
Rep. by its Chief Executive Officer
No.1, Jaffar Syrang Street
Vallal Seethakathi Nagar
Chennai -1. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for a writ of mandamus forbearing the respondents from in any
manner initiating any action under Section 64 of the Wakf Act 1995
without first considering the representation dated 05/05/2023 made
by the petitioner
For the Appellant/ :: Mr.N.A.Nissar Ahmed,
Petitioner Senior Counsel,
for Ms.Kowser Sulthana
For 1st Respondent :: Mr.Haja Mohideen Gisthi,
in WA.1129/2023 Standing counsel
and respondents in
WP.15585/2023
JUDGMENT
(Made by the Hon'ble Chief Justice)
The appellant assails the judgment of learned Single Judge of
this Court, thereby dismissing the writ petition filed by the appellant
challenging the show-cause notice dated 13.12.2022, issued by the
Chief Executive Officer of the Tamil Nadu Wakf Board.
https://www.mhc.tn.gov.in/judis
WA No.1129 and 2023
and WP No.15585 of 2023
2. It appears that inquiry is conducted/contemplated against the
appellant, purportedly resorting to Section 64 of the Tamil Nadu Wakf
Act, 1995, (hereinafter referred to as ‘the Act’).
3. The contention of the learned counsel for the appellant is that
the action of appointing or removing a Mutawalli can only be taken by
the Wakf Board. The Chief Executive Officer is not empowered to take
action with regard to removal or appointment of Mutawalli. Reference
is made to Section 32(2)(g) of the Act. Learned counsel further
submits that the Board cannot take the plea of delegation. Section 27
of the Act clearly bars delegation in respect of matters covered under
Section 32(2)(g) of the Act. Learned counsel submits that even under
Section 64 of the Act, it is only the Board who can conduct inquiry and
pass orders, pursuant to the inquiry. The Chief Executive Officer
cannot usurp the powers of the Board.
4. Learned counsel for the Wakf Board submits that it is under
the directions of the Wakf Board, the Chief Executive Officer has issued
the notice. Inquiry is always conducted by the Board and the decision
https://www.mhc.tn.gov.in/judis
WA No.1129 and 2023
and WP No.15585 of 2023
also would be taken by the Board.
5. There cannot be any dispute with the proposition that the
powers to appoint or remove a Mutawalli solely vests with the Board.
6. Mutawalli can be removed on any of the grounds as
enumerated under Section 64(i) of the Act of 1995. Section 64 lays
down the procedure to be followed if the Board intends to take action
against a Mutawalli and inquiry is contemplated. After inquiry is
conducted, the decision has to be taken by not less than 2/3 majority
of the members of the Board, and the order of removal can be passed
only by the Board.
7. Collection of evidence is a different matter altogether.
Evidence can be collected by the Chief Executive Officer or any other
person can submit the evidence to the Board.
8. In the present case, the Board has not taken any decision qua
https://www.mhc.tn.gov.in/judis
WA No.1129 and 2023
and WP No.15585 of 2023
the appellant. The matter has not yet concluded. The appellant can
raise all the defences available to him in the inquiry. Opportunity is
given to the appellant to put-forth his stand.
9. It is the contention of the appellant that the properties in
question are his private properties and not the wakf properties. The
appellant has avenues open to agitate in respect of the same before
the appropriate forum. In writ jurisdiction, this Court would not dilate
upon the nature of the property.
10. In light of the above, we are not inclined to entertain the
present proceedings.
11. It is made clear that we have not dealt with the merits of the
contentions and the same are kept open for the appellant to agitate
before the authorities and, or, the Board. The defences raised by the
appellant certainly will have to be considered by the Board before
arriving at a decision.
12. With these observations, the writ appeal and the writ petition
https://www.mhc.tn.gov.in/judis
WA No.1129 and 2023
and WP No.15585 of 2023
are disposed of. There will be no order as to costs. Consequently, CMP
No.11348 of 2023 and WMP No.15089 of 2023 are closed.
(S.V.G., CJ.) (P.D.A., J.)
21.06.2023
Index : Yes/No
Neutral Citation : Yes/No
tar
https://www.mhc.tn.gov.in/judis
WA No.1129 and 2023
and WP No.15585 of 2023
To
1.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar, Chennai
https://www.mhc.tn.gov.in/judis
WA No.1129 and 2023
and WP No.15585 of 2023
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU, J.
(tar)
WA No.1129 and 2023
21.06.2023
https://www.mhc.tn.gov.in/judis
