The requirement to frame a scheme for Waqf administration hinges on the satisfaction of necessity by the Waqf Board under Section 69 of the Waqf Act, 1995.

ORDER

A.Badharudeen, J.

This revision petition has been filed by the petitioners in O.P.No.59 of 2013 before the Kerala State Waqf Board, Ernakulam and the appellants in O.A.No.22 of 2013 before the Waqf Tribunal, Kozhikode. Respondents herein are the respondents in the above proceedings.

2. The revision petitioners want to set aside the order passed by the Waqf Board and the Waqf Tribunal on the ground that the above orders are per se illegal.

3. Heard the learned counsel for the revision petitioners as well as the contesting respondents.

4. Brief facts of the case are as follows:

According to the revision petitioners, there is no Waqf deed scheme or bye-law for the administration the Waqf, viz., Kammadam Muslim Jama-ath, Karattu P.O., Kanakappally and accordingly, the revision petitioners filed O.P.No.59 of 2013 before the Board under Sections 32, 69 and 70 of the Waqf Act, 1995 for conducting enquiry and to frame a scheme for administration of the Waqf. Thereafter, the Board by order dated 13.08.2013 dismissed the original petition and the challenge against the said order in O.A.No.22 of 2013 also was negatived by the Waqf Tribunal as per order dated 08.04.2015.

5. The learned counsel for the revision petitioners argued at length to convince this Court that framing a scheme to administer the Waqf property is absolutely necessary and the Board illegally rejected the claim of the revision petitioners to frame a scheme, though it is well within the jurisdiction of the Board to adhere the mandate of 69 of the Waqf Act, 1995 . The learned counsel read out Section 69 of the Waqf Act to appraise his point.

6. Whereas the learned counsel for the contesting respondents vehemently opposed this contention and argued that the dispute in this matter, in fact, is governed by the terms of the decree in O.S.No.30 of 2012 binding on the Waqf Board also. It is argued further that the Board after having appraised the circumstances prevailing in as much as the functioning of the Kammadam Muslim Jama-ath found that the question of framing a scheme for the administration of the Waqf in dispute did not arise. This view was confirmed by the Waqf Tribunal also. Thus, it is argued that no interference in this matter is warranted.

7. While addressing the core issue as to whether framing of a scheme is necessary to administer the Kammadam Muslim Jama-ath and the Waqf properties annexed thereto, reference to Section 69 of the Waqf Act, 1995 is necessary.

8. Section 69 of the Waqf Act reads as follows:-

(1) “Whenever the Board is satisfied on its own motion or on the application of not less than 5 persons interested in any Waqf, that is necessary or desirable 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 consultation, with the Mutawalli or the applicant in the prescribed manner.

(2) A scheme framed under (1) may provide for the removal of the Mutawalli of the 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 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 Waqf.”

9. A cursory reading of Sub Section (1) of Section 69 would make it clear that whenever the Board is satisfied on its own motion or on the application of not less than 5 persons interested that it is necessary or desirable to frame a scheme for the administration of the Waqf, it may by an order frame such a scheme. So, the ingredients to be satisfied for the Board to frame a scheme are two fold; (i) The Board should satisfy the necessity of a scheme and (ii) the Board should satisfy that it is necessary and desirable to frame a scheme. On finding the twin conditions, the Board can very well frame a scheme.

10. In the