The appointment of Mutawalli for the Wakfs is governed by custom and usage and should be held as a hereditary right by only the family members belonging to Mookane family. The Wakf Act, 1995 recognizes the right of hereditary succession to the position of a Mutawalli. The burden lies heavily upon the person asserting the custom and usage and must prove that he is governed by the custom. The Wakf Act, 1995 prevails over the Muslim Personal Law (Shariat) Act, XVIII of 1949.

JUDGMENT

(Prayer:Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, directing the respondent to conduct elections by secret ballot to the Chinna Masjid and Madrasa e Yahyaul Islaam bearing G.S.No.114/NA, Madrase Fathima bearing GS No.149/NA, New Mosque and Madrase Nusrathul Islam bearing GS No.183/NA and Road Masjid bearing GS No.189/NA as sought vide representation dt 26.6.15.

Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order made in Na.Ka. No.4367/11/ A7/VE, dated 17.07.2018 passed by the 1st respondent, quash the same and consequently direct the 1st respondent to grant approval to the Resolution dated 25.06.2018 for the election of the Muthavalli of the petitioner mosques and madarsa for the period between 18.07.2018 and 17.07.2021 by considering the representation dated 30.07.2018.)

1. The subject matter of challenge in W.P.No.23671 of 2018 is more a consequence of a direction issued by this Court on W.P.No.25077 of 2015 and hence both these writ petitions are taken up together, heard and disposed of through this common order.

2. W.P No.25077 of 2015 has been filed by the Secretary of the Managing Committee of four Wakfs viz., the Chinna Masjid and Madrasa e Yahyaul, Islaam bearing G.S.No.114/NA, Madrase Fathima bearing GS.No.149/NA, New Mosque and Madrase Nusrathul Islam bearing GS.No.183/NA and Road Masjid bearing GS.No.189/NA, seeking for a direction to the Tamil Nadu Wakf Board (for brevity “Board”) to conduct elections by secret ballot to the four Wakfs.

3. This writ petition was disposed of by an order dated 11.09.2015 and the Board was directed to take a decision for conducting election in these Wakfs within a period of three months.

4. A petition was filed by the petitioner in W.P.No.23671 of 2018, to recall the above order passed by this Court on the ground that the order was obtained without revealing the material facts and without impleading the necessary parties. It was further alleged that the order passed by this Court was taken advantage and the Board proceeded to make arrangements for conducting election for appointment of Mutawalli. The proceedings issued by the Board dated 17.07.2018, for conducting election for the four Wakfs through secret ballot was put to challenge in W.P.No.23671 of 2018. When this writ petition came up for hearing on 01.08.2022, the order passed in W.P.No.25077 of 2015 was taken note of by this Court and the learned counsel for the petitioner in W.P.No.23671 of 2018 was informed that the order that has already been passed in W.P.No.25077 of 2015 must be recalled/modified and only thereafter, the issue raised in W.P.No.23671 of 2018 can be gone into by this Court. Taking cue from the same, the petition in WMP.No.20441 of 2022 has been filed to recall the order passed in W.P.No.25077 of 2015. This petition was allowed and the order was recalled. Thereby, this writ petition was also heard along with W.P.No.23671 of 2018.

5. For the sake of convenience, the petitioner in W.P.No.23671 of 2018 will be addressed as the ''Petitioner'', the petitioner in W.P 25077 of 2015 and the impleaded petitioner in WMP.No.20386 of 2022 will be addressed as ‘private respondents’ and the official respondents will be addressed as the ‘Board’.

6. The case of the petitioner in brief is as under;

(i) One Abdul Khadir Sahib of Mookane family created the Wakfs in the year 1901 for establishing Mosques and Madarsa. As per the Will of the founder of the Wakfs, Mutawallies will be nominated from the Mookane family as per the established custom and usage. The proforma reports of the year 1955 prepared by the Board for all the four Wakfs clearly stipulates that Mutawalli is nominated hereditarily according to custom and usage. According to the petitioner, after the founder of the Wakfs, it is only those persons belonging to the Mooka