Madras High Court
Mohamed Yusuf vs The Tamil Nadu Waqf Board on 28 January, 2025
Author: Mohammed Shaffiq
Bench: Mohammed Shaffiq
W.P.(MD)No.19869 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 30.10.2024
DATED : 28.01.2025
CORAM
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P.(MD)No.19869 of 2024
and
W.M.P.(MD)Nos.16842 & 16844 of 2024
1.Mohamed Yusuf,
Secretary/ Mutawalli,
The Administrative Committee of
The Mohaideen Aandavar Pallivasal,
Pattukottai, Thanjavur District.
2.A.K.Mohamed Rila ... Petitioners
Vs.
1.The Tamil Nadu Waqf Board,
Rep. By its Chief Executive Officer,
No.1, Jafer Syrang Street,
Vallalseethakathi Nagar,
Chennai.
2.The Superintendent of Waqf,
Tamil Nadu Waqf Board, Thanjavur Division,
Diwan Nagar, Court Road, Thanjavur. ... Respondents
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1/36
W.P.(MD)No.19869 of 2024
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, calling for the records relating
to the impugned scheme framed and notified by the 1st Respondent qua
Mohaideen Aandavar Periya Pallivasal Waqf, Pattukottai, Thanjavur District in
LR.RC.No.7346/12/B7/TNJ dated 15.07.2024, published in the Tamil Nadu
Government Gazette in No.IV-3a/40/2024 on 17.07.2024 and quash the same
as illegal.
For Petitioners : Mr.M.Mahaboob Athiff
For Respondents : Mr.V.Ragavachari
Senior Advocate
for Mr.D.S.Haroon Rasheed
ORDER
The present writ petition has been filed assailing the impugned scheme
framed and notified in the Tamil Nadu Government Gazette dated 17.07.2024
in respect of Mohaideen Aandavar Periya Pallivasal Waqf, Pattukottai,
Thanjavur District.
2. The 1st petitioner is the Secretary of the Waqf in question, while the 2nd
petitioner is the member of the said Waqf and a person interested in the Waqf
in terms of Section 3(k) of the Waqf Act, 1995 (hereinafter referred to as “the
Act”). As per the proforma governing the Waqf, the rule of succession to the
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office of mutawalli is by selection and not election. The relevant portions of the
proforma is extracted hereunder:
PROFORMA REPORT
1. Serial Number : 370
2. Name of Taluk : Pattukottai
3. Name of the Village : Pattukottai
4. Name of the Waqf and (Whether : Mohideen Andavar Mosque
Sunni or Shia) (Sunni)
5. Original Waqf deeds, title deed : The Original Waqf deed is
and Patta Nos. and dates not available. Mosque is
maintained.
6. Nature of the Waqf (Whether : Pious and religious
pious, Religious, or Charitable
or Waqf by user, Mashrutul
Khidmat or Waqf alal Aulad)
7. Object of the waqf and the : The Mosque is maintained
conditions of grant as per custom
8. Name of the beneficiaries and : ----
and their address
9. Name of the Muthavalli their : Mohamed Abdullah Rowther
address Son of Mohaamed Matharsa
Rowther Analvuthankulathur
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Street, Pattukottai.
10. The Rule of succession to the : Selection by the Jamath
office of the muthavalli and as per Custom.
whether it is under the Waqf deed
or by custom or by usage
3.Brief facts:
3.1 The subject Waqf is a notified Waqf under the Waqf Act, 1995 and
registered with the 1st Board under GS No.416/TNJ. The 1st petitioner is the
Secretary of the subject Waqf and the 2nd petitioner is the member of the
petition mentioned Waqf and is a person interested in the Waqf in terms of
section 3(k) of the Waqf Act,1995. As per the statutory notification/Proforma
governing the Waqf, the rule of succession in respect of the office of
Mutawalli is by selection. It is reiterated that, as per the customs and usage
governing the Waqf and the Proforma, the Mutawalli/Administrative
Committee of the Waqf in question is chosen by selection by the Jamath and
not by election.
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3.2. It is stated that the previous Mutawalli Amanullah had
misappropriated the funds of the subject Waqf and was removed from the
office under section 64 of the Waqf Act on 09.01.2019.
3.3. After his removal, an administrative committee/adhoc committee had
been appointed by the Board in terms of section 63 of the Act for the
administration of the Waqf and for retrieval of the illegally alienated properties
of the Waqf. While so, the respondent board had notified election to the Waqf.
The notification calling for the election by the board was the subject matter of
challenge in the earlier round of litigation in the case of Mohammed Yusuf vs.
Tamil Nadu Waqf Board (W.P.(MD).No.13695 of 2020) wherein it was held
that the board neither has power to conduct election nor it can alter the mode of
selection of Mutawalli as found/indicated the Waqfnama or proforma or the
customs and usage applicable to the concerned Waqf.
3.4. While so, the respondent Board has invoked its power under section
69 of the Act and framed a Scheme which inter alia include clauses providing
for the conduct of election by the Board and the rule of succession was
modified / changed from selection by Jamath to election by Jamath.
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3.5 A notification dated 16.07.2024 was issued by the 2nd respondent
notifying election schedule to the petition mentioned Waqf on 29.09.2024. It
was also stated that the said notification is issued by the 2nd respondent in his
capacity as an Election Officer of the Waqf in question.
3.6 It may also be relevant to note that the scheme framed under section
69 was notified on 17.07.2024 in the Tamil Nadu Government Gazatte.
Aggrieved by the same, the petitioner has filed the present writ petition
challenging the scheme.
4. Against this background, question arises whether the impugned
Scheme framed and notified by the 1st Respondent dated 15.07.2024 and
published in the Gazette on 17.07.2024 is valid.
5. Case of the petitioners:
The case of the petitioner can be broadly divided into two segments viz.,
i) Absence of power with the Board to conduct elections for a Waqf even
under Schemes framed in terms of Section 69 of the Act.
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ii) Secondly, the impugned Scheme is framed contrary to the mandatory
requirements contemplated/ stipulated under Section 69 of the Act.
SEGMENT - I:
a) The scheme insofar as it inter alia provides for conduct of elections by
the Board i.e., the 1st Respondent herein is without jurisdiction inasmuch as the
power of the Board, even while framing a Scheme ought to be in confirmity
with the Customs and usages of the Waqf. The subject “Waqf” even in terms of
the proforma, provides that the Mutawalli shall be selected by the Jamath as per
custom. It has been the custom of the subject “Waqf”, to have its Mutawalli
selected by Jamath. The Board, thus, cannot deviate from the above mode of
appointment to the office of Mutawalli viz., selection by Jamath, instead
provide that the Mutawalli would be elected by the Jamath and the Board
would conduct the Elections.
b) This Court in 2022 (3) CWC 143 in the case of Mohammed Yusuf vs.
The Tamil Nadu Waqf Board, had in an earlier round of litigation wherein
while considering the question as to the power of the Board to conduct
elections for Waqf, held that the Board does not have the power to conduct
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elections. Importantly, the subject “Waqf” was part of the batch and had
challenged the notification in Na.Ka.No.7346/12/Aa7/Thanjai calling for
elections which was set aside. This Court was also pleased to observe as under:
“21...
a) .....The present administrative committee/ mutawalli shall
take steps for appointment of the administrative committee/
mutawalli in accordance with the proforma / Waqf deed i.e., by
selection within a period of 12 weeks from the date of receipt of a
copy of this order.”
5.1. In the light of the above binding order of this Court which is yet to
be stayed or set-aside, by any judicial order, the Scheme insofar as it inter alia
provides for conduct of elections by the Board is a fraud on statutory power
vested with the Board and is vitiated, being a colourable exercise of power and
suffers from the vice of malice in law and thus a nullity. In other words, it is
submitted that the scheme insofar as it provides for conduct of election by the
Board circumvents and subverts judicial orders of this Court, through the quasi-
judicial process of framing of schemes by the 1st Respondent Board in exercise
of its powers under Section 69 of the Act.
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c) The impugned scheme insofar as it provides for conduct of elections
by the Board also cannot be sustained inasmuch as it is contrary to the settled
legal maxim - “quando aliquid prohibetur; prohibetur et omne per quod
devenitur ad illud” meaning what cannot be done directly – cannot be done
indirectly.
SEGMENT-II:
a) Before framing a scheme, the Board must be satisfied either on its own
motion or on application of not less than 5 persons interested in any Waqf to
frame a scheme for the proper administration of the Waqf – However no such
satisfaction is arrived at/ recorded by the Board.
b) Such satisfaction of the need to frame a scheme for administration of
Waqf must be preceded by an enquiry – No material to show any enquiry made
in compliance with the mandate under Section 69 of the Act.
c) After formation of opinion viz., the need to frame a scheme for the
administration of the Waqf, the Board is required to provide a reasonable
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opportunity of hearing to the muthavallis and others i.e., persons interested in
the Waqf.
d) The Draft scheme should then be consulted with the muthawalli or
others in the prescribed manner. However, there are no rules framed prescribing
the manner in which the consultation must be made by the Board with the
muthawalli or others. Importantly, there was no consultation by the Board as
provided under Section 69 of the Act.
e) On consultation with the Muthawalli and persons interested, the Board
may pass an order framing a scheme, which shall be notified in the Gazette.
5.2. The impugned scheme does not comply with any of the above
requirements which are conditions precedent/ sine qua non for framing a
Scheme under Section 69 of the Act.
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6. Case of the Respondents:
6.1. The respondent after making oral submissions filed written
submission reiterating their submissions. The written submission of the
respondent are extracted hereunder:
As per the Petitioner when the proforma states that the
appointment to the office to the muthawalli is by selection and
not election. Consequently, the attempt of the Waqf Board to
conduct elections was challenged in W.P. (MD) No. 19015 of
2024.
It is alleged that the attempt of the Waqf Board to conduct
elections is in contravention of the judgment of this Hon’ble
Court in Mohamad Yusuf vs. Tamil Nadu Waqf Board, 2022 (3)
CWC 143. It is also alleged that the scheme framed by the Board
is unsustainable in view of the fact that it conflicts with the
customs and usage of the Waqf and that the framing of a scheme
that confers on the Board, a power to conduct an election, is a
colorable exercise of power.
Arguendo, the Petitioner alleges that there was no
consultation process before the scheme was notified and that on
the date of notification i.e. 16-07-2024, the scheme was not in
existence.
WRITTEN SUBMISSIONS OF THE RESPONDENTS
The Petitioner has predicated his challenge on three
grounds, i.e., a) lack of jurisdiction of the Board, relying on
proviso to Section 32 (1) of the Act; b) Fraud on statutory power
and malice in law and c) Violation of Section 69 of the Act. As
the interpretation of the same are intertwined, they are answered
together.
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A. The Petitioner contends that the entire exercise of
power under Section 69 of the Act to frame the impugned scheme
is ultra vires to the proviso to Section 32 of the Act and is
without jurisdiction. The contentions are absolutely frivolous.
Section 32 of the Waqf Act, 1955 provides for the powers and
functions of the board. The expressions ‘superintendence and
‘vest’ together along with ‘controlled/administered’ which
convey absolute control in the authority to ensure all the waqfs
are administered. The Board is made the sole custodian and
controller of the affairs of the waqf in the State.
B. These expressions under Section 32(1) are very wide in
their connotation and amplitude. These include a variety of
powers which are incidental or consequential, to achieve the
declared objects. Pertinently Section 32(2)(d) provides for
settling schemes for the administration of Waqf. The provision
commences with absolute power being conferred upon the Board
for the administration of the Waqfs within the State. The only
requirement is that the Board considers the following:
a. Directions of the Waqif
b. The purpose of the Waqf
c. Usage or custom of the Waqf sanctioned by the school of
Muslim law to which the Waqf belongs.
C. In the present case, the mutawalli of the Waqf had been
removed by the Board under Section 64 of the act of owing to
irregularities. Thereafter from the year 2019, the Waqf had been
administered by the Ad-hoc committee and no new mutawalli
was been appointed for the Waqf. The scheme framed by the
Board is primarily for the welfare of the waqf and for the proper
administration of the Waqf.
a. Mohamed Mujeebur Rahman vs. The state of Tamil Nadu
(2011 SCC Online Mad 685), the Hon’ble High Court had made
clear that the settlement of scheme is within the purview of the
Waqf Board.
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D. It is the contention of the Petitioner that the scheme
framed is in variance to the customs and usage of the Waqf.
Needless to state, the proviso to Section 32 (1), states that it is
the custom of the Waqf, as recognized by the school of Muslim
law. Consequently, the reliance upon the proforma alone would
be insufficient. Similarly, no evidence has and can be led by the
Petitioner to prove the existence of a custom. The issue of the
existence of a custom has to be relegated to a court of competent
jurisdiction.
E. The reliance placed on the Petitioner on the proforma
to prove the existence of a custom is misplaced. The proforma is
a record of the Board that states the origin, assets, income,
object and beneficiaries of a Waqf. At the time of preparation of
the proforma the existence of a custom is never proved.
Consequently, the scheme cannot be assailed on the ground that
it falls foul of the proviso to Section 32 (1) of the Act.
F. The Petitioner also assails the scheme on the ground
that it amounts to ‘Statutory Fraud’ as it is in contravention of
the judgment of this Hon’ble Court in Mohamad Yusuf vs. Tamil
Nadu Waqf Board. At this juncture, this Respondent would
humbly submits that this Hon’ble Court was not apprised of
certain precedents that would be squarely applicable for the
issue sought to be answered.
a. In All India Imam Organization and Ors vs. Union of India
and Ors. (1993) 3 SCC 584, the Supreme Court confirmed that
the Waqf Board has control over the Waqf.
G. Further, the judgment proceeds to isolate provisions of
the Act for the purpose of interpreting whether the Board has
jurisdiction to conduct an election. The statutory rules of
interpretation dictate that any Act ought to be read as a whole. A
reading of the Waqf Act, 1995, as a whole would clearly indicate
that the intention of the Legislature was to ensure absolute
superintendence of the Waqfs, in a State, by the Board
constituted under the Act. The Board is vested with the power to
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assume direct management of a Waqf, recover the properties of
a Waqf, determine whether a property is Waqf property or not,
remove encroachments, remove & appoint muthawallis and hold
any inquiry relating to the administration of a Waqf. The
relegation of a Board to that of an administrative functionary
would therefore run contra to the very legislation and such
interpretation is unsustainable.
H. Consequently, it is humbly submitted that the decision
of this Hon’ble Court in Mohamad Yusuf vs. Tamil Nadu Waqf
Board ought to be revisited in light of the aforementioned
precedents. It is also stated that the decision is a subject matter
of challenge in a writ appeal and is scheduled for final disposal.
I. Further, Section 69 of the Act states that the Waqf board
may frame such scheme for the administration of the waqf either
on its own motion or on application made on the concerned
waqf. Any person aggrieved by the such settlement of scheme of
management of waqf may institute a suit in tribunal for setting
aside such settlement. Consequently, the remedy of the Petitioner
is only before the Tribunal and not before this Hon’ble Court.
This is on account of the fact that the factual issues surrounding
the scheme and any objections that arise therefrom can only be
decided by the Tribunal, after appreciation of evidence.
a. S. SaitBasha Vs The Chief Executive Officer and Anr
(2013 SCC Online Mad 1926).
J. Reliance is also placed on the judgment of the Hon’ble
Bombay High Court in Shaikh Saleemuddin v. Baba Quereshi,
2015 (11) RCR (civil) 1 (bom). The Hon’ble High Court held
that,
“Reading section 32 with section 69 makes
it clear that the what section 69 is providing for is
the “power” to frame scheme for administration
of waqf. Sub-section (1) of section 69 makes it
clear that the board may frame a scheme “for
administration of the Waqf”. The very fact that
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section 69 provides the scheme under this section
which can even provide for removal of mutawalli,
making clear that the scheme which is being
contemplated under section 69 is broader scheme
for complete administration of the waqf. This is
different from what is provided in Section 32
which deals with settling schemes for managing
the affairs of the waqf. Section 69, 70 and 71 of
the act read together makes it clear that the board
can frame scheme for the complete administration
of the waqf which can even provide for removal of
mutawalli”.
K. Therefore, it is pertinent to note that section 69 of the
Act which empowers the board to frame a scheme for mere
administration of the waqf, and can extend to even removal of
mutawalli. Consequently, it would be absurd to suggest that the
mode of selecting a muthawalli, would be outside the scope of
the Board while framing a scheme under Section 69 of the Act.
6.2. The learned counsel for the Respondents would finally submit the
following:
1. “That the issue of the existence of a custom can only be
ascertained after evidence is led by the Petitioner and the exercise
can only be carried out by the competent Court i.e. the Waqf
Tribunal
2. That the judgment of this Hon’ble Court in Mohamad
Yusuf vs. Tamil Nadu Waqf Board needs to be revisited with
specific reference to the legislative intent of the Act, the powers of
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the Board and the precedents on the issue of the powers of the
Board”.
7. Heard both sides and perused the materials on record.
8. Before proceeding to deal with the merits, it may be necessary to deal
with the preliminary objection as to the maintainability of the writ by Mohamed
Yusuf on the premise that the said Mohamed Yusuf, i.e., the 1st petitioner in
W.P(MD)No.19869 of 2024 had submitted a Draft scheme which contained
clauses for conduct of elections by the Board, it was thus submitted that the
writ petition in W.P(MD)No.19869 of 2024 by Mohamed Yusuf cannot be
maintained on the ground of estoppel. Though the above issue was raised orally
the respondent Board in its written submissions had not raised the above aspect.
Nevertheless, it appears to me that the above contention may not have any
bearing on the outcome of the writ petition for the following reasons viz.,
a) The above Draft scheme was submitted by the petitioner Mohamed
Yusuf prior to the order of this court in Mohamed Yusuf’s case dated
19.04.2023, wherein it was held that the Board does not have the power to
conduct elections. In view thereof the above Draft scheme submitted prior to
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the above judgment may not constitute a bar to the petitioner Mohamed Yusuf
challenging the power of the Board to conduct election. This is in view that it is
trite law that there is no estoppel against law. In this regard, it is useful to refer
to the following judgments:
1. M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC
464 :
“No doubt the Mahapalika is a continuing body and it will
be estopped from changing its stand in the given case. But when
the Mahapalika finds that its action was contrary to the provisions
of law by which it was constituted there could certainly be no
impediment in its way to change its stand. There cannot be any
estoppel operating against the Mahapalika. The principles laid
down in Union of India v. Anglo Afghan Agencies Ltd. [AIR 1968
SC 718 : (1968) 2 SCR 366] and of the Calcutta High Court
in Ganges Mfg. Co. v. Sourujmull [ILR (1880) 5 Cal 669, 678 : 5
CLR 533] cannot apply to the facts of the present case.”
2. State of Rajasthan v. Surendra Mohnot, (2014) 14 SCC 77 :
“18. In Union of India v. Hira Lal [(1996) 10 SCC 574] , it
has been held that the concession made by the Government
Advocate on the question of law could not be said to be binding
upon the Government.”
b) It is equally settled that, a concession, consent or representation made
by any person cannot deprive such person from challenging an order if the
order is illegal or unconstitutional, for there can be no estoppel against law and
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the right to judicial redress is a Constitutional Right. Further, consent cannot
confer jurisdiction on any authority which inherently lacks jurisdiction and
therefore the Board cannot cite the Draft scheme submitted by the petitioner as
a justification for assuming jurisdiction. In this regard, useful reliance can be
placed on the decision of the Constitution Bench of the Apex Court in Vyapuri
Kuppusamy vs. State of Maharashtra, reported in (1985) 3 SCC 545, wherein it
was held as follows:
“28. It is not possible to accept the contention that the
petitioners are estopped from setting up their fundamental rights
as a defence to the demolition of the huts put up by them on
pavements or parts of public roads. There can be no estoppel
against the Constitution. The Constitution is not only the
paramount law of the land but, it is the source and sustenance of
all laws. Its provisions are conceived in public interest and are
intended to serve a public purpose. ......... This principle can have
no application to representations made regarding the assertion or
enforcement of fundamental rights. ........ No individual can barter
away the freedoms conferred upon him by the Constitution. A
concession made by him in a proceeding, whether under a mistake
of law or otherwise, that he does not possess or will not enforce
any particular fundamental right, cannot create an estoppel
against him in that or any subsequent proceeding. Such a
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concession, if enforced, would defeat the purpose of the
Constitution. .....”
8.1 It is thus beyond the pale of any doubt that there is no estoppel against
law, thus mere submission of the Draft scheme prior to the decision of this
Court in the petitioner's case, reported in Mohammed Yusuf vs Tamil Nadu
Waqf Board (W.P.(MD).No.13695 of 2020), holding that the Board does not
have power to conduct election to a Waqf would not by itself non-suit the
petitioner.
8.2 It is further submitted that the first petitioner had not disclosed the
said fact, while instituting the present writ petition, however an unconditional
apology tendered by the petitioner was placed on record with a prayer to pardon
the omission and assures that the same is neither deliberate nor wanton. This
court is inclined to accept the same. This is in view of the fact that I had already
found that submission of the Draft scheme would not estop the petitioner, and
non-suit the first petitioner from maintaining the present challenge. Further,
there are two petitioners and the 2nd petitioner could still pursue the challenge
independent of the 1st petitioner, on the same grounds, thus the objection may
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not materially alter the scope of examination of the issue nor the outcome of the
writ petition.
9. I shall proceed to deal with the second segment of the submissions /
challenge made by the petitioners. To appreciate the above contention of the
petitioner, which revolves around the mandate of Section 69 of the Act, it may
be relevant rather necessary to extract Section 69 of the Act, which reads as
under:
“69. Power of Board to frame scheme for administration of
1 [waqf].--2 [(1) Where the Board is satisfied after an enquiry,
whether on its own motion or on the application of not less than
five persons interested in any waqf, to frame a scheme for the
proper administration of the waqf, it may, by an order, frame such
scheme for the administration of the waqf, after giving reasonable
opportunity and after consultation with the mutawalli or others in
the prescribed manner.]
(2) A scheme framed under sub-section (1) may provide for
the removal of the mutawalli of the 1 [waqf] holding office as such
immediately before the date on which the scheme comes into
force:
Provided that where any such scheme provides for the
removal of any hereditary mutawalli, the scheme shall also
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provide for the appointment of the person next in hereditary
succession to the mutawalli so removed, as one of the members of
the committee appointed for the proper administration of the 1
[waqf].
(3) Every order made under sub-section (2) shall be
published in the prescribed manner, and, on such publication
shall be final and binding on the mutawalli, and all persons
interested in the 1 [waqf]:
Provided that any person aggrieved by an order made
under this section may, within sixty days from the date of the
order, prefer an appeal to the Tribunal and after hearing such
appeal, the Tribunal may confirm, reverse or modify the
order:Provided further that the Tribunal shall have no power to
stay the operation of the order made under this section.
(4) The Board may, at any time by an order, whether made before or
after the scheme has come into force, cancel or modify the scheme.
(5) Pending the framing of the scheme for the proper administration of
the 3 [waqf], the Board may appoint a suitable person to perform all or
any of the functions of the mutawalli thereof and to exercise the powers,
and perform the duties, of such mutawalli.”
10. From a reading of Section 69 of the Act, in particular, sub-section (1)
to Section 69 of the Act, it appears that before a scheme is framed thereunder
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the following requirements must be complied with. I shall proceed to deal with
the same:
a) Satisfaction of the Board:
10.1. The Board must be “satisfied” of the need to frame a Scheme for
the proper administration of the Waqf, it may then proceed to frame a Scheme
in the manner provided under Section 69 of the Act. The above satisfaction
must be arrived at by the Board “after an enquiry” on its own motion or on an
application of not less than 5 persons interested in any Waqf to frame a
Scheme.
10.2. The expression “satisfied” would mean making up its mind (or) the
authority coming to a conclusion on the evidence available. The expression
“satisfied” must mean reasonably satisfied and excludes arbitrariness or
rationality. Satisfaction must be honest, careful, rational and based on material
and not on conjunctures and surmises. To understand the scope of the
expression “satisfied” employed in Section 69 of the Act, it may be relevant to
refer to the following judgments:
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i) T.P. Senkumar v. Union of India, reported in (2017) 6 SCC 801:
“93. The learned counsel for the State Government is right
in submitting that it is only a prima facie satisfaction that is to be
arrived at by the State Government that the general public is
dissatisfied with the efficiency of the police so as to enable a
shifting out of the State Police Chief. However, that prima facie
satisfaction must be based on some cogent and rational material.
Nothing has been placed before us in this regard except the view
that there was dissatisfaction among the general public on the
efficiency of the police. Mere repetition of the provisions of
Section 97(2)(e) of the Act is not sufficient — there must be some
material on record (other than a newspaper report) but
unfortunately nothing has been pointed out to us during the course
of submissions. It is not enough to merely contend that the State
Government was subjectively satisfied that the appellant ought to
be transferred out as the State Police Chief.
ii) Ratan Roy v. State of Bihar, 1950 SCC OnLine Pat 20 Pg 443:
“But it must also be remembered at the same time that
where ever a legislation uses the word “satisfied”, it must mean
reasonably satisfied. I again quote for my authority the decision of
the House of Lords in Liversidge v. Anderson. In that case Lord
Wright pointed out; “satisfied” must mean “reasonably
satisfied”, it cannot import an arbitrary or irrational state of
being satisfied”.
iii) Chandreshwari Prasad NarainDeo v. State of Bihar, reported
in 1955 SCC OnLine Pat 62 :
“31. The contention of learned Government Pleader was
that the satisfaction of the Collector under S. 4(h) was in the
nature of a subjective satisfaction and, therefore, could not be
questioned by a Superior Court. I am unable to agree. I think the
word “satisfied” in S. 4(h) must be construed to mean
“reasonably satisfied”, and, therefore, the finding of the Collector
under S. 4(h) cannot be a subjective or arbitrary finding but must
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be based upon adequate material. I also think that the satisfaction
of the Collector under S. 4(h) is not a capricious satisfaction but
must be capable of being tested in an objective manner.”
(emphasis supplied)
10.3. Therefore, even before initiating any proceedings for framing of
Scheme, the Board is mandated, to record satisfaction “after an enquiry”, that it
is necessary for the proper administration of the Waqf that a scheme should be
framed. Recording of satisfaction is a condition precedent or sine qua non
before the Board proceeds to frame a Scheme or exercise the power to frame a
Scheme for the Waqf. In the present case, admittedly the Board has neither
held any enquiry nor recorded satisfaction of the need to frame a scheme for
the proper administration of the Waqf.
10.4. Importantly, despite a specific challenge having been made by the
petitioner that there was no satisfaction recorded by the Board before
proceeding to frame the impugned scheme. The Respondent has not let in any
material/ evidence to show that there was a formation of opinion or in other
words, the Board was satisfied of the need to frame a Scheme for the proper
administration of the Waqf. The above satisfaction is a condition precedent /
sine qua non for exercise of power, absence of which would render the entire
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proceedings ultra vires Section 69 of the Act. Thus, failure to record the
satisfaction of the Board to frame scheme in terms of section 69 of the Act,
would vitiate the entire proceedings.
b. Absence of enquiry:
The satisfaction by the Board of the need to frame a scheme must be
arrived at “after making an enquiry”, however no such enquiry was made. The
written submissions nor the counter of the Respondent even speak about
conduct of an enquiry, on the basis of which the Board was satisfied of the need
to frame a Scheme for the administration of the Waqf. It appears that enquiry
leading to satisfaction of the need to frame a Scheme by the Board is a
condition precedent/ jurisdictional fact, for the Board to proceed to exercise its
power under Section 69 of the Act. It is relevant to note that the above
requirement of an enquiry preceding such formation of satisfaction has been
specifically incorporated by the Waqf Amendment Act of 2013 (Act 27 of
2013), prior to which, the requirement was merely to be satisfied that is
necessary and expedient to frame a Scheme. Therefore, the holding of an
enquiry before formation of opinion, that a scheme is to be framed for the
proper administration of the Wakf is mandatory and the non-compliance of the
same would render the entire exercise void. I say so, for any attempt at
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dispensing with enquiry (or) treating it as directory, would result in rendering
the legislative exercise of mandating the Board to arrive at a satisfaction of the
need to frame a scheme for proper administration of the Wakf after an enquiry a
wasteful legislative exercise. It is trite that any legislative exercise has a
purpose and one ought not to impute superfluity (or) render the legislative
exercise otiose. It may be relevant to refer to the following judgments to
appreciate the relevance and importance of existence of jurisdictional facts and
application of mind as to its existence by the authority concerned before
assuming jurisdiction. It is relevant to extract the judgment of the Hon'ble
Supreme Court in the case of Arun Kumar v. Union of India reported in (2007)
1 SCC 732, which reads as under:
“74. A “jurisdictional fact” is a fact which must exist before a
court, tribunal or an authority assumes jurisdiction over a
particular matter. A jurisdictional fact is one on existence or
non~existence of which depends jurisdiction of a court, a tribunal
or an authority. It is the fact upon which an administrative
agency-s power to act depends. If the jurisdictional fact does not
exist, the court, authority or officer cannot act. If a court or
authority wrongly assumes the existence of such fact, the order
can be questioned by a writ of certiorari. The underlying principle
is that by erroneously assuming existence of such jurisdictional
fact, no authority can confer upon itself jurisdiction which it
otherwise does not possess.
75. In Halsbury's Laws of England, it has been stated:
“Where the jurisdiction of a tribunal is dependent on the existence
of a particular state of affairs, that state of affairs may be
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described as preliminary to, or collateral to the merits of, the
issue. If, at the inception of an inquiry by an inferior tribunal, a
challenge is made to its jurisdiction, the tribunal has to make up
its mind whether to act or not and can give a ruling on the
preliminary or collateral issue; but that ruling is not conclusive”.
76. The existence of jurisdictional fact is thus sine qua non
or condition precedent for the exercise of power by a court of
limited jurisdiction.”
(emphasis supplied)
10.5. Keeping in view the law laid down as to the relevance of
“jurisdictional fact”, in mind, and the absence of enquiry leading to the
satisfaction of the Board to frame a Scheme for the proper administration of the
Waqf, which this Court finds is a Jurisdictional fact, absent in the present case,
the impugned Scheme is without Jurisdiction.
c. Lack of consultation:
The learned counsel for the petitioner would submit that the impugned
scheme was framed without consultation with the muthawalli or others as
mandated under Section 69 of the Act. The scope of consultation in terms of
Section 69 of the Act has been considered by this Court in the case of G.Syed
Kudrathulla reported in (2023) 3 CTC 440, the relevant portion of the order
reads as under:
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“ 24. To answer the above question it may be relevant to
contrast Section 69 and 32 which deals with framing of Schemes
while Section 32 (2) (d) of the Act provides that settlement of
Scheme shall not be made without giving the “parties affected an
opportunity of being heard“, in contrast Section 69 requires the
Scheme to be framed “after consultation with the Mutawalli or the
applicant in the prescribed manner“. There seems to be a
conscious use of different expressions in Sections 32 (2) (d) and
69 of the Act, while dealing with different classes of persons /
entities involved with the Waqf. While Section 32 deals with ?
parties affected? and provides that they shall be granted an
opportunity of heard, Section 69 deals with Mutawalli and
Applicant?and provides that the Scheme shall be framed after
consultation.
25. ..... While with reference to “parties affected“ it
provides for opportunity of being heard?, whereas while dealing
with Mutawalli and the applicant it mandates consultation. When
Parliament has expressed itself differently with reference to
different set of entities, it ought to be understood that the intent
was to convey different meaning.
26. Importantly, consultation requires meetings of minds
with definite facts constituting the foundation and source for final
decision being made available to the persons/entities to be
consulted to make the above exercise meaningful and ensure that
the intended purpose/object of the above exercise is served.
Section 69(1) of the Act mandates that any Scheme shall be
framed after consultation with the Mutawalli or applicant. Any
failure to comply with the mandate of “consultation“ renders the
entire action ultra vires under Section 69 of the Act.
27. ..... To understand / appreciate the significance of
consultation when the statute requires the same, it may be relevant
to refer to the following judgments,
a) Decision of the Hon-ble Apex Court in State of Gujarat
vs. Justice R.A Mehta, 2013 (3) SCC 1, wherein considering the
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concept of consultation and when a consultation is said to be
undertaken the Court held as follows:
“25. The object of consultation is to render its process
meaningful so that it may serve its intended purpose. Consultation
requires the meeting of minds between the parties that are
involved in the consultative process on the basis of material facts
and points in order to arrive at a correct or at least a satisfactory
solution. If a certain power can be exercised only after
consultation such consultation must be conscious, effective,
meaningful and purposeful. To ensure this, each party must
disclose to the other all relevant facts for due deliberation. The
consultee must express his opinion only after complete
consideration of the matter on the basis of all the relevant facts
and quintessence. Consultation may have different meanings in
different situations depending upon the nature and purpose of the
statute...”
b) In Chandramouleshwar Prasad v. Patna High Court (1969) 3 SCC 56
(para 7), Hon'ble Apex Court held as under:
“consultation or deliberation can neither be complete nor
effective before the parties thereto make their respective points of
view known to the other or others and discuss and examine the
relative merits of their views. If one party makes a proposal to the
other, who has a counter~proposal in mind which is not
communicated to the proposer, a direction issued to give effect to
the counter~proposal without any further discussion with respect
to such counter~proposal with the proposer cannot be said to
have been issued after consultation. If a certain power can be
exercised only after consultation, such consultation cannot be said
to have been undertaken if one party makes a proposal to the
other/ authority, who has a different proposal in mind, which is
not communicated to the proposer and a direction by the authority
to give effect to such different proposal is made.”
c) In Chandra Mohan v. State of Uttar Pradesh, (1967) 1 SCR 77:
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“These provisions indicate that the duty to consult is so
integrated with the exercise of the power that the power can be
exercised only in consultation with the person or persons
designated therein. To state it differently, if A is empowered to
appoint B in consultation with C, he will not be exercising the
power in the manner prescribed if he appoints B in consultation
with C and D. These provision indicate that the duty to consult is
so integrated with the exercise of the power that the power can be
exercised only in consultation with the person or persons
designated there”.
11. The above portion of the judgments would demonstrate the
significance of consultation whenever mandated by a statute. Failure to comply
with the mandate of “consultation” renders the entire action ultra vires, Section
69 of the Act.
12. Applying the above decision of this Court, I find that the impugned
scheme stands vitiated inasmuch as the scheme was not framed on consultation
as mandated under Section 69 of the Act. The act of consultation
contemplated / provided under Section 69 of the Act is mandatory and failure to
comply with the above mandatory requirement would vitiate the scheme.
d. Departure from Draft Scheme:
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It is also submitted by the learned counsel for the petitioners that there
are several clauses in the impugned scheme which are different from the Draft
scheme furnished and thus the impugned proceedings stands vitiated. In
support of the above contention, the learned counsel for the petitioner had in
the written submission set out a Table wherein the variations are tabulated. The
Table below is relevant and thus extracted:
S.No. Subject Draft Scheme Impugned Scheme
1. Territorial All 33 wards of Pattukottai Confined to Ward No.27,
operation 28, 29, 24, 23, 30 to 33.
Interestingly the area/ ward
in which the Mosque is
located is not included in
the territorial limits.
2. Subscription fee Rs.500/- per annum Rs.250/- per annum
3. Eligibility for Should have completed 18 years of Should be a member of a
membership and age and should have paid family residing in the
election subscription territorial area and should
be a subscriber.
4. Mode of selecting Administrative committee is to be Election by secret ballot
the mutawalli elected by the Jamath once in three method for 3 years.
years
5. Election of Elected directly by the Jamathdars The president and all other
president and by the general body whereas other office bearers are to be
office bearers offic bearers such as treasurer, elected from amongst the
secretary are to be elected elected members of the
indirectly from amongst the committee indirectly.
committee members.
6. Disqualification to The contestant or his wife or The contestant alone
contest for children should be a tenant or requires to be not a tenant.
elections lesseee in the properties of the The tnenacy by the wife or
Masjid or Dargah. children is not a bar.
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S.No. Subject Draft Scheme Impugned Scheme
7. Financial The bank accounts are to be The bank accounts can be
transactions of the operated by the president and operated by the secretary
waqf treasurer or president and secretary. and the treasurer or
mutawalli and treasurer.
8. General Body 5 members are sufficient to request Atleast 2/3rd of the total
for a general body meeting. membership should present
a membership to call for a
general body meeting.
No specific quoram is required for
Quoram
a general body meeting and can be
conducted with nominal number of A minimum of 2/3rd of
members if the president members are necessary as
authorizes it to be necessary. quoram to hold the meeting
even if the president even if
the president even if the
president finds if necessary.
9. Amendment of To amend the bylaws, 50% of the At least 2/3rd members
bye laws total members should be present should be present and 2/3rd
and the motion should be passed at members should support the
least 50% of such members. motion.
12.1. It thus appears that the impugned scheme is different from the Draft
Scheme, thereby vitiating the entire exercise, moreso, when the
modified/amended clauses relates to essence/core of the Scheme inasmuch as it
inter alia alters the territorial operation, eligibility for membership in election
and mode of selecting the mutawalli.
13. It is trite law that whenever the Act contemplates granting of a
reasonable opportunity before performing an Act, the opportunity that is
granted must be real and not illusory. If the scheme which is finalised contains
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clauses which are different from that contained in the Draft scheme there is
never an opportunity for muthawalli or others to put forth their views to the
actual / final scheme that is framed. In this regard, it may be relevant to refer to
the judgment of the Supreme Court in Chandra Mohan v. State of Uttar
Pradesh, (1967) 1 SCR 77:
“ In another case, it was said in the same context consultation is
not complete or effective before parties thereto make the
respective points of view known to the other or others and discuss
and e amine the relative merits of their views. If one party makes a
proposal the other party has a counter proposal in his mind which
is not communicated to the proposer, an order issued to give effect
to the counter cannot be said to have been made after
consultation. But if a meeting all the persons required to be
consulted is called in which all of them have opportunity to be
present and deliberate, a decision taken in the meeting cannot be
challenged on the ground that some of the persons required be
consulted were absent in the meeting?..”
14. In the light of the above discussion, there is no doubt in my mind that
the impugned scheme has been framed without complying with the mandate
contained in Section 69 of the Act viz.,
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a) There was no enquiry by the Board leading to its satisfaction of the
need to frame a scheme for the proper administration of the Waqf.
b) There is no satisfaction recorded nor material disclosed which could
form the basis for the Board to be satisfied of the need to frame a scheme.
c) There is no consultation with muthawalli or others.
d) The Draft scheme and the final scheme contained clauses which are
materially different thereby denying the entities who ought to be consulted, of a
reasonable opportunity to put forth its views regarding the scheme.
15. Importantly, the submissions of the Respondents does not address
any of the above issues instead proceeds to focus on the power of the Board to
conduct elections and requires this Court to revisit its earlier orders holding that
the Board does not have power to conduct elections in a series of cases some of
them being:
i) Shajahan Vs. The Tamil Nadu Waqf Board and others – W.P.(MD).No.
20031 of 2023 dated 31.08.2023,
ii) A.Mohammad Mubarak Vs. The Tamil Nadu Waqf Board and another
– W.P.No.22010 of 2023 dated 08.09.2023,
iii) S.A.K.Ibrahim Vs. The Chief Executive Officer, Tamil Nadu Waqf
Board and others – W.P.Nos.16712 of 2020 and 29451 of 2023 dated
15.11.2023,
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iv) N.Mohammed Ali Jinna Vs. The Tamil Nadu Waqf Board and others
– W.P.(MD).No.25585 of 2022 dated 07.06.2024.
16. I find that the impugned scheme is liable to be set aside on the basis
that it is not in compliance with the mandate in Section 69 of the Act, hence I
don't propose to examine the power of the Board to conduct elections for the
purpose of disposing this writ petition.
17. In view thereof, the writ petition stands disposed of. There shall be
no order as to costs. Consequently, connected Miscellaneous Petitions stand
closed.
28.01.2025
NCC : Yes / No
Index : Yes / No
mka/mrn
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MOHAMMED SHAFFIQ, J.
mka
To:
1.The Chief Executive Officer
Tamil Nadu Waqf Board,
No.1, Jafer Syrang Street,
Vallalseethakathi Nagar,
Chennai.
2.The Superintendent of Waqf,
Tamil Nadu Waqf Board, Thanjavur Division,
Diwan Nagar, Court Road, Thanjavur.
28.01.2025
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