Madras High Court
J.Ilayas vs The Government Of Tamil Nadu on 10 September, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 W.P.(MD)No.24333 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.09.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.24333 of 2025
1.J.Ilayas
2.A.Mohamed Ghouse ... Petitioners
Vs.
1.The Government of Tamil Nadu,
Rep.by its Principal Secretary,
Department of Minority Welfare,
Fort St.George, Chennai.
2.The Tamil Nadu Waqf Board,
Rep.by its Chief Executive Officer,
Jaffer Syrang Street,
Vallalseethakathi Nagar,
Chennai.
3.The Superintendent of Waqf,
Trichy Region, Tamil Nadu Waqf Board,
No.8/124, Kaithai Millath Road,
Palakarai, Trichy.
4.Akthar Hussain
5.H.Mohamed Mubarak
6.A.Fakrudeen ... Respondents
1/11
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2 W.P.(MD)No.24333 of 2025
Prayer: Writ petition filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorari to call for the records relating to the
impugned order made by the second respondent in Se.Mu.No.
7046/93/A5/Trichy dated 25.06.2025 and quash the same as illegal.
For Petitioner : Mr.M.Mahaboob Athiff
For Respondents : Mr.K.S.Selvaganesan,
Additional Government Pleader for R1
Mr.V.Raghavachari, Senior Counsel
for Ms.Ajimath Begam for R4 to R6
Mr.K.Jeyamohan for R2 and R3
***
ORDER
The writ petitioners question the impugned proceedings dated
25.06.2025 issued by the Tamil Nadu Waqf Board appointing the private
respondents herein as trustees of the petition-mentioned Waqf. The
administration of the said Waqf is governed by a scheme framed by the
Sub Court, Trichirappalli in O.S No.91 of 1925 on 29.01.1930. As per
the terms of the scheme, the Wakf is to be administered by a Board
comprising five trustees. Out of the five, one is to be appointed from
amongst the pangalis, one representing the hereditary line and the
remaining three to be appointed by the scheme court from amongst the
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public/prominent Mohammedans of Trichirappalli. The said trustees are
to hold office for three years and are to elect an executive trustee from
amongst themselves.
2.The primary contention of the learned counsel appearing for the
petitioner is that in view of Section 66 of (Unified Waqf Management,
Empowerment, Efficiency, and Development Act, 1995, the Tamil Nadu
Waqf Board does not have the jurisdiction to appoint the mutawallis for
the petition mentioned waqf. He placed reliance on the orders dated
11.04.2023 in WP No.5622 of 2023 (B.Abdul Kather v. Tamil Nadu
Waqf Board), 31.01.2025 in CRP Nos.1654, 1655, 1577 of 2020 &
1095 of 2022 (Syed Maskoor Mohideen vs. Tamil Nadu Waqf
Board) and the order dated 16.11.2011 in Application No.7140 of 2010
in C.S No.117 of 1954.
3.Per contra, the learned Senior Counsel appearing for the
respondents pointed out that the order made in WP No.5622 of 2023
(B.Abdul Kather v. Tamil Nadu Waqf Board) was reversed by the
Hon'ble Division Bench in WA No.2011 of 2024 dated 20.03.2025. He
added that the decision of another learned Single Judge rendered in
Syed Maskoor Mohideen is based on the reversed decision in
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B.Abdul Kather and therefore both cannot be relied upon. According
to him, the judgment rendered in B.T.Noordeen v. The Managing
Trustee, Nagore Dargah Sheriff and ors [2025 (3) CTC 577]
clinches the issue. After taking me through the decisions of the
Hon'ble Division Bench reported in 2014 SCC OnLine Mad 2041
(K.S.Sharfudeen v. UOI) and rendered in WA No.1640 of 2016
etc., batch dated 08.06.2018, he contended that when once the
Waqf Board was constituted, all the powers and jurisdiction of the
scheme courts came to be vested in it. The consequence is that the
power of the court to appoint trustees or mutawallis should be
construed as the power of the Waqf Board.
4.Though counsel on either side advanced few other contentions
also, I propose to take up this ground for consideration first.
5.Section 66 of the Act reads as follows :
“66. Powers of appointment and removal of
mutawalli when to be exercised by the State Government.
—Whenever a deed of 1 [waqf] or any decree or order of
a court of any scheme of management of any 1 [waqf]
provides that a court or any authority other than a Board
may appoint or remove a mutawalli or settle or modify
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such scheme of management or otherwise exercise
superintendence over the 1 [waqf], then, notwithstanding
anything contained in such deed of 1 [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.”
No doubt, there are at least three Division Bench decisions supporting
the proposition canvassed by the learned Senior Counsel for the
respondents. They are
a) (2023) 2 L.W 547 (I.S.Ibrahim v. The Principal
Secretary to Government),
b) 2014 SCC OnLine Mad 2041 (K.S.Sharfudeen v. UOI)
and
c) WA No.1640 of 2016 etc., batch dated 08.06.2018.
Though it was not brought to the notice of His Lordship The Hon'ble
Mr.Justice N.Sathish Kumar that B.Abdul Kather had been reversed by
the Division Bench, the order dated 31.01.2025 in CRP No.1654 of 2020
etc., rests on an independent reasoning. His Lordship does refer to the
precedents and makes the following pertinent observation :
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“21. Although the Division Benches of this court have
consistently held that the Waqf Board had replaced and had
taken the position of the scheme court under Section 32 of
the Waqf Act, 1995, it is important to note that none of the
Division Bench rulings ever took into account the
Government's authority when a scheme decree is in effect,
as envisaged under Section 66 of the Waqf Act, 1995. In
other words, the Division Benches of this Court in the above
judgements had no occasion to consider the provision in
Section 66 of the Waqf Act, 1995.”
His Lordship also relied on the decision of the Division Bench of the
Kerala High Court in C.I.Majeed and ors vs. The Kerala State Wakf
Board (O.P Wakf) Nos.3106 and 3158 of 2023 dated
26.11.2015).
6.Even though the decision of His Lordship The Hon'ble Mr.Justice
V.Lakshminarayanan in B.T.Noordeen v. The Managing Trustee,
Nagore Dargah Sheriff and ors [2025 (3) CTC 577] is
comprehensive, I am unable to sail along for the simple reason that it
runs counter to the decision of the Division Bench reported in 1996 2
L.W. 788 (Executive Committee of the Masjid-E. Farkhunda v.
P.A.G.Hussain Moulana). It was held therein that the power of
general superintendence of all Waqfs vested in the Board does not
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extend to nullify or ignore or supersede a scheme settled by a decree of
court for the administration of the waqf and so long as the decree is in
existence and has not been modified or set aside or reversed, the Waqf
Board has no jurisdiction to ignore it and act contrary to it. The
decision rendered in 1975 1 MLJ 201 (Palani Muslim
Dharmaparipalana Sangam v. Waqf Board) in which the aforesaid
proposition was laid down was approved. It was further held that the
notification under Waqf Act or the management of the day to day affairs
of the Waqf Board will not in any way suspend or affect the operation of
a scheme decree passed by a civil court. This decision of the Hon'ble
Division Bench was followed in quite a few subsequent decisions such
as Syed Thajuddin v. Syed Mohideen (2011) 2 MLJ 105 and
H.Mohamed Ghouse v. The Chief Executive Officer, TN Wakf
Board (MANU/TN/2764/2015).
7.The decision reported in 2014 SCC OnLine Mad 2041
(K.S.Sharfudeen v. UOI) and the other decisions relied on by the
learned Senior Counsel for the respondents have not adverted to 1996
2 L.W. 788 (Executive Committee of the Masjid-E. Farkhunda v.
P.A.G.Hussain Moulana).
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8.The proposition laid down in 1996 2 L.W. 788 (Executive
Committee of the Masjid-E. Farkhunda v. P.A.G.Hussain
Moulana) is in direct conflict with the ratio laid down in the precedents
relied on by the learned Senior Counsel for the respondents. This
conflict has to be necessarily resolved only by a larger bench. I frame
the question for reference in the following terms :
“Whether the Tamil Nadu Waqf Board will have
jurisdiction under Section 32 of the Act to appoint
mutawallis for those waqfs to which Section 66 of the Act is
applicable?”
9.Registry is directed to place the papers before My Lord The
Hon'ble Chief Justice to consider constituting a Larger Bench to answer
the aforesaid reference.
10.A Three Judges Bench of the Hon'ble Supreme Court vide
order dated 09.09.2020 in Civil Appeal No.3123 of 2020 (Dr.Jaishri
Laxmanrao Patil vs The Chief Minister And Ors) had held that the
referring Court is not disabled from passing interim orders merely
because the matter is referred to a larger Bench. I had already stayed
the operation of the impugned order passed by the Board. The said
interim order will continue till the larger bench that may be constituted
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takes a call in the matter.
11.The matter cannot end there. The second writ petitioner is an
incumbent trustee. His tenure has however expired. It is ironical that
he was appointed as a trustee not by the scheme court but by the Waqf
Board vide proceedings dated 01.04.2022. It is not the case of a pot
calling the kettle black. It is a case of one kettle calling another kettle
black. There is a better expression in Tamil which does not offend our
sensibilities : <aj;ij ghh;j;J ,spj;jjhk; gpj;jis. The second writ
petitioner who himself was appointed by the Tamil Nadu Waqf Board as
a trustee lacks the moral standing to assail the impugned proceedings.
In any event, he can no longer squat in the board as a trustee. I
declare that he has ceased to hold the office. He has to hand over
charge forthwith to the jurisdictional Waqf Inspector.
10.09.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
Skm
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To:
1.The Principal Secretary, Department of Minority Welfare,
Fort St.George, Chennai.
2.The Tamil Nadu Waqf Board, Rep.by its Chief Executive Officer,
Jaffer Syrang Street, Vallalseethakathi Nagar, Chennai.
3.The Superintendent of Waqf, Trichy Region, Tamil Nadu Waqf Board,
No.8/124, Kaithai Millath Road, Palakarai, Trichy.
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G.R.SWAMINATHAN, J.
SKM
10.09.2025
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