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2023 Supreme(Mad) 3003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
B.Abdul Kather S/o.Baba John – Appellant
Versus
Tamil Nadu Wakf Board – Respondent
Writ Petition No.5622 of 2023 and W.M.P.Nos.5651 & 5654 of 2023
Decided on : 11-04-2023
Advocate Appeared:
For the Appellant : Mr.Y.Kaja Navas
For the Respondents: Mr.G.Mohamed Aseef
The main legal point established in the judgment is that the power to modify or cancel the terms of a wakf scheme settled by a civil court rests with the State Government, in consultation with the Wakf Board, as per Section 66 of The Waqf Act, 1995.
Headnote:
Wakf - Appointment of Trustees - The Waqf Act, 1995, Section 32, Section 69, Section 66
Fact of the Case:
The petitioner, a descendant of the Wakif through the female line, challenged the modification of the scheme decree for the administration of a wakf by the Tamil Nadu Wakf Board. The petitioner contended that the modification excluded female descendants from being appointed as trustees.
Finding of the Court:
The court found that the Wakf Board did not have the power to unilaterally modify the scheme decree settled by a competent civil court. It held that the power to modify or cancel the terms of the scheme rested with the State Government, in consultation with the Wakf Board, as per Section 66 of The Waqf Act, 1995.
Issues: The main issue was whether the Wakf Board had the authority to cancel or modify the terms of the scheme formed by a competent civil court.
Ratio Decidendi: The court held that the Wakf Board's powers were limited to those provided by the Act and that it could not modify or cancel the terms of a scheme settled by a civil court. It emphasized that such powers rested with the State Government, in consultation with the Wakf Board, as per Section 66 of the Act.
Final Decision: The court allowed the writ petition, quashed the impugned proceedings of the Wakf Board, and directed that any attempt to modify the scheme should only be undertaken by the State Government after consultation with the Wakf Board and with due notice and hearing to the interested parties.
ORDER :
Prayer : Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records in connection with the resolution and order passed by the respondents in Serial No.134 of 2022, Na.Ka.No.10996/03/A5/Trichy, dated 13.07.2022 and Che.Mu.Aanai.10996/03/A5/Trichy, dated 08.08.2022 and quash the same and consequently, direct the respondents to appoint the new trustees to the Hazarath Nabi Sallalaho Allaihi O Sallam Fatihah Wakf as per the scheme decree dated 05.08.1954 made in O.S.No.44 of 1952 on the file of I Additional Sub Court, Trichy and modified by the Division Bench of this Court dated 25.10.1960 in A.S.No.666 of 1954.
The petitioner, who is one among the descendants of the Wakif through the female line, is aggrieved by the proceedings of the first respondent dated 08.08.2022, wherein the first respondent has effected certain modifications to the scheme decree that was passed in O.S.No.44 of 1952 by the I Additional Sub Court, Trichy.
2. The case of the petitioner is that the wakf, viz., Hazarath Nabi Sallalaho Aleichi O Sallam Fatihah Wakf, is a registered wakf bearing No.609/Trichy. The said wakf was administered as per the scheme decree passed in O.S.No.44 of 1952 by the I Additional Sub Court, Trichy, dated 05.08.1954 and which was subsequently confirmed by the Division Bench of this Court in A.S.No.666 of 1954 by judgment and decree dated 25.10.1960. The scheme decree provided for appointment of trustees. According to the petitioner, one among the descendants of the wakif through the female line is also entitled to be appointed as trustee and the petitioner falls under that category.
3. The grievance of the petitioner is that the first respondent through the impugned proceedings dated 08.08.2022 had modified the scheme decree and one such modification that was suggested to be implemented by the first respondent was that the trustees must come only from the male descendants and the descendants of the wakf through the female line was sought to be completely removed. Aggrieved by the same, the present writ petition has been filed before this Court.
4. Heard Mr.Y.Kaja Navas, learned counsel for petitioner and Mr.G.Mohamed Aseef, learned counsel for respondents.
5. The main issue that arises for consideration in the present writ petition is as to whether the Tamil Nadu Wakf Board has powers to cancel or modify the terms of the scheme formed by a competent civil Court. To arrive at a conclusion on this issue, certain provisions under the The Waqf Act, 1995 (hereinafter referred to as 'the Act') must be considered.
6. Section 32 of the Act provides for the powers and functions of the Board. Section 32(2)(d) of the Act gives powers to the Board to settle schemes of management of a wakf. This power is directly linked to Section 69 of the Act. The Board on its own motion or on application made by interested persons in any wakf, after conducting an enquiry, can frame a scheme for proper administration of the wakf by passing appropriate orders. Section 69(4) of the Act provides that the Board from time to time can pass orders and thereby can cancel or modify the scheme framed by the Board. A combined reading of Sections 32 and 69 of the Act makes it clear that the Wakf Board has wide powers insofar as cancelling or modifying the scheme that are framed by the Wakf Board. Section 69(4) of the Act is the power that has been traced by the first respondent while issuing the impugned proceedings dated 08.08.2022.
6. The question is as to whether the Board can exercise such powers where the scheme is settled by an order of the competent civil Court. The Wakf Board can trace its powers only from the Act and not beyond it. Therefore, the Act itself should provide the power to the Board to modify or cancel the terms of the scheme settled by a competent civil Court. No such power has been given under the Act and Section 69(4) of the Act will not come to the aid of the Board
