Madras High Court
Road Mosque vs The Tamilnadu Wakf Board on 15 September, 2023
W.A.Nos.2324 and 2326 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2023
CORAM :
THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.A.Nos.2324 and 2326 of 2023
Road Mosque,
Madarsa-E-Nusrathul Islam,
New Mosque, Small Mosque and
Madrasa E Fathima Girls School
rep. by its Mutawalli M.Fazlur Rahman,
1/1, Road Mosque Street,
Peranambut-635 810,
Vellore District. .. Appellant in
both appeals
Vs
1.The Tamilnadu Wakf Board,
rep. by its Chief Executive Officer,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai-600 001.
2.The Superintending of Wakf,
Vellore Circle,
Bahadursha Masjid Complex,
8, Arani Road,
Sainathapuram,
Vellore-632 001.
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W.A.Nos.2324 and 2326 of 2023
3.Shabbier Ahmed Kaka
4.Fazlur Rahman Nariyam
5.A.Amjed Ahmed
6.A.Parvaze Ahmed .. Respondents
in W.A.No.2324/2023
1.C.Amjad Ahmed
2.The Tamilnadu Wakf Board,
rep. by its Chief Executive Officer,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai-600 001. .. Respondents
in W.A.No.2326/2023
Prayer: Appeals under Clause 15 of the Letters Patent against the
common order passed by the learned Single Judge in W.P.No.23671 of
2018 and 25077 of 2015 dated 16.6.2023.
For the Appellant : Mr.N.Manoharan
For the Respondents : Mr.Mohammed Fayaz Ali
for respondent No.1
in W.A.No.2324 of 2023
and respondent No.2
in W.A.No.2326 of 2023
: Mr.V.Karthic
Senior Counsel
for Mr.K.P.Suresh Kumar
for respondents 3 to 6
in W.A.No.2324 of 2023
Mr.V.Karthic
Senior Counsel
for Mr.K.P.Jotheeswaran
for respondent No.1
in W.A.No.2326 of 2023
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https://www.mhc.tn.gov.in/judis
W.A.Nos.2324 and 2326 of 2023
: R2 in W.A.No.2324 of 2023 –
Not Ready in Notice
COMMON JUDGMENT
(Delivered by the Hon'ble Chief Justice)
We have heard Mr.N.Manoharan, learned counsel for the
appellant; Mr.Mohammed Fayaz Ali, learned for the respondent Tamil
Nadu Wakf Board; and, Mr.V.Karthic, learned Senior Counsel for
Mr.K.P.Suresh Kumar and Mr.K.P.Jotheeswaran, learned counsels for
the private respondents.
2. The issue is about the elections of Mutawalli for the Wakf,
namely, Road Mosque, Peranambut, Vellore District.
3. The learned Single Judge has directed elections to be held for
Mutawalli from Jammat.
4. The appellant and the private respondents do not dispute that
the Mutawalli has to be elected by the Jammat as per the customary
usage.
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W.A.Nos.2324 and 2326 of 2023
5. The only point of debate between the parties is, according to
the appellant, the Mutawalli is elected by the Jammat only from one
family i.e. Mookane family; whereas, according to the private
respondents, the Mutawalliship is not hereditary and the Jammat elects
it, but not restricted to one Mookane family. Reliance is placed by
learned counsel for the appellant on the judgment of the Apex Court in
the case of Aliyathammuda Beethathebiyyappura Pookoya and another
v. Pattakal Cheriyakoya and others, reported in (2019) 16 SCC 1.
6. On perusal of the said judgment, it is manifest that the Apex
Court also observed that in the absence of Waqif and, in case of public
Wakf, the burden of proof to demonstrate the manner of choosing the
Mutawalli is very high. The standard of proof required is very high.
Naturally, in writ jurisdiction, the evidence cannot be led to that effect.
The parties will have to adduce evidence to prove the same. The same
will have to be proved by preponderance of probability. Naturally, the
documents will have to be produced and evidence will have to be
adduced, which is not permissible under Article 226 of the Constitution
of India.
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W.A.Nos.2324 and 2326 of 2023
7. The learned Single Judge has directed elections to be held for
the post Mutawalli as per the customary usage by Jammat.
8. It is for the appellant to establish the customary usage, which
can be only established before the Wakf Tribunal. It is for the
appellant to avail the remedy, as may be permissible under law. We
are not inclined to accept the request for stay of elections, in view of
the aforesaid facts and circumstances.
9. The writ appeals, accordingly, stand disposed of. There will
be no order as to costs. Consequently, C.M.P.Nos.19821 and 19827
of 2023 are closed.
(S.V.G., CJ.) (P.D.A., J.)
15.09.2023
Index : Yes/No
Neutral Citation : Yes/No
bbr
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W.A.Nos.2324 and 2326 of 2023
To
1.The Chief Executive Officer,
Tamilnadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai-600 001.
2.The Superintending of Wakf,
Vellore Circle,
Bahadursha Masjid Complex,
8, Arani Road,
Sainathapuram,
Vellore-632 001.
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https://www.mhc.tn.gov.in/judis
W.A.Nos.2324 and 2326 of 2023
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU,J.
bbr
W.A.Nos.2324 and 2326 of 2023
15.09.2023
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