A long-standing established practice (such as election) prevails over a customary practice (such as hereditary succession) if the latter has been discontinued for several decades.

Prayer: Writ Petition filed under Article 226 of Constitution of India, praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the Proforma furnished by the 2nd respondent vide his proceedings in Manu Number:92/Po.Tha.A/Tha.A.Uu.Sa.2005/2024, dated 27.09.2024 and quash the same as illegal and consequentially to direct the respondents to frame a scheme for the administration of the Waqf namely Hazreth Syed Musthafa Darood Masthan Dargah Mosque in the light of the draft scheme submitted by the Petitioner vide letter dated 22.07.2024 pursuant to the order passed by the 2nd respondent in his proceedings in Se.Mu.Order.11779/09/Aa5/Trichy dated 19.02.2024 within the period that may be stipulated by this Court.

For Petitioner : Mrs.H.Jasima Yasmin

for M/s.Ajmal Associates

For Respondents : Mr.S.A.Ajmal Khan

ORDER

1. This Writ Petition has been filed challenging the proforma furnished by the 2nd respondent vide proceedings in Manu Number:92/Po.Tha.A/Tha.A.Uu.Sa.2005/2024, dated 27.09.2024 and consequentially to direct the respondents to frame a scheme for the administration of the petitioner Waqf in the light of the draft scheme submitted by the petitioner vide letter dated 22.07.2024 pursuant to the order passed by the 2nd respondent in Se.Mu.Order.11779/09/Aa5/Trichy, dated 19.02.2024.

2. The learned counsel appearing for the petitioner would submit that though the petitioner has challenged the proforma of the Waqf Board, they are restricting the relief so far as directing the respondents to frame a scheme. According to the learned counsel, in the present case, the second respondent Waqf Board brought the idea of framing the scheme for conducting the election by virtue of order dated 19.02.2024 and directed the petitioner to file draft scheme. The petitioner was a mutawalli and under his leadership, a draft scheme was submitted on 22.07.2024. However, the said scheme is yet to be approved by the Waqf board. As on date, the functioning of Waqf Board is stayed by the order of this Court. Further, the learned counsel would contend that the scheme itself is only with regard to the manner of conduct of election for selection to the post of mutawalli and members. She therefore, prayed for appropriate orders.

3. The learned counsel appearing for the respondents would submit that the respondents are in the process of appointing hereditary mutawalli. Once the hereditary mutawalli is appointed, the question of election or selection of mutawalli or members would not come into picture.

4. Per contra, the learned counsel appearing for the petitioner would submit that in the present case, the question of selection of hereditary mutawalli would not come into picture. Originally, the rule of succession to the post of mutawalli was a hereditary one and it was a customary practice. However, column number 21 of the proforma report dated 02.06.1995 shows that the Waqf is not administered by any Scheme settled by the Court of law and it is not managed by the mutawalli as per custom and usage. By referring the above, the learned counsel would submit that since 1955 onwards, the subject Waqf has not been managed by hereditary mutawalli or as per usage and customs. For the past 70 years, mutawalli was selected by virtue of election only. Since such selection through election was followed for the past 7 decades, now also the same has to be followed. The customary practice was in existence only until 1955 and by virtue of subsequent method of selection of mutawalli through election, the former practice will automatical