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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
MOHAMMED SHAFFIQ, J.
Mohamed Yusuf and Anr. – Petitioners
Versus
The Tamil Nadu Waqf Board, Rep. By its Chief Executive Officer and Anr. – Respondents
W.P.(MD) No.19869 of 2024 and W.M.P.(MD) Nos.16842 & 16844 of 2024
Decided On : 28-01-2025
| Table of Content |
|---|
| 1. challenge to waqf elections and scheme validity. (Para 1 , 2 , 3) |
| 2. validity of waqf scheme. (Para 4) |
| 3. scheme framed under section 69 of the act contested. (Para 5) |
| 4. arguments against board's election powers. (Para 6) |
| 5. observations on statutory compliance. (Para 7) |
| 6. importance of consultation and requirement of enquiry. (Para 10 , 11) |
| 7. failure of the board to comply with legal mandates. (Para 14 , 15 , 16) |
| 8. writ petition disposed without election conduct. (Para 17) |
ORDER :
(MOHAMMED SHAFFIQ, J.)
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 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 Sunni or Shia) | : | Mohideen Andavar Mosque (Sunni) |
| 5. Original Waqf deeds, title deed and Patta Nos. and dates | : | The Original Waqf deed is not available. Mosque is maintained. |
| 6. Nature of the Waqf (Whether pious, Religious, or Charitable or Waqf by user, Mashrutul Khidmat or Waqf alal Aulad) | : | Pious and religious |
| 7. Object of the waqf and the conditions of grant | : | The Mosque is maintained as per custom |
| 8. Name of the beneficiaries and and their address | : | ---- |
| 9. Name of the Muthavalli their address | : | Mohamed Abdullah Rowther Son of Mohaamed Matharsa Rowther Analvuthankulathur Street, Pattukottai. |
| 10. The Rule of succession to the office of the muthavalli and whether it is under the Waqf deed or by custom or by usage | : | Selection by the Jamath as per Custom. |
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.
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.
3.5 A notification da
The Waqf Board lacks jurisdiction to conduct elections for the Mutawalli, and any scheme not complying with Section 69's inquiry and consultation requirements is rendered void.
The Waqf Board can only manage waqf under its authority if no existing court scheme is in place; otherwise, modifications require State Government action.
The Inspector lacks authority to conduct an enquiry under Section 64(1) of the Act, which mandates that only the Joint Commissioner or Deputy Commissioner can settle schemes after proper consultation....
The court clarified the electoral process for Waqf trustees, stipulating that voters must be at least 21 years old and reside in a specified vicinity, while urging the Waqf Board to ensure compliance....
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 recogniz....
The Chairman of the Waqf Board has the authority to appoint a new Management Committee post supersession based on the provisions of the Waqf Act.
The Waqf Board must adhere to the rules of succession as per the waqf deed, reinforcing the principle of governance according to established customs and the intent of the waqif.
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