High Court · 2025

W.A.No.2011 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.03.2025CORAMTHE HON'BLE MR. JUSTICE S. M. SUBRAMANIAMANDTHE HON'BLE MR. JUSTICE K. RAJASEKARWrit Appeal No.2011 of 2024andCivil Miscellaneous Petition No.14328 of 2024The President,Hazerath Nabi Sallallahu Allaihi O Sallam Fathiha Waqf,Trichy District, Trichy – 620 001.... AppellantVs.1.B.Abdul Kather2.Tamil Nadu Waqf Board, represented by its Chief Executive Officer, No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai – 600 001.3.The Chief Executive Officer, Tamil Nadu Waqf Board, No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai – 600 001.... RespondentsWrit Appeal filed under Clause 15 of Letters Patent Act, against the order dated 11.04.2023 in W.P.No.5622 of 2023.1/10 https://www.mhc.tn.gov.in/judis W.A.No.2011 of 2024For Appellant: Mr.N.A.Nissar Ahmed, Senior Advocate For Mr.L.Abdul BasithFor R1: Ms.G.Kalai Rani For Mr.Y.Kajanavas For RR2 & 3: Mr.Mohammed Fayaz Ali JUDGMENT(Judgment of the Court was made by S.M.SUBRAMANIAM, J.)Under assail is the writ order dated 11.04.2023 passed in W.P.No.5622 of 2023.2. The third respondent in the writ petition is the President, Hazerath Nabi Sallallahu Allaihi O Sallam Fathiha Waqf, Trichy is the writ appellant before this Court.3. Mr.N.A.Nissar Ahmed, learned Senior Counsel appearing on behalf of the appellant would preliminarily contend that the writ order impugned has been issued at the admission stage, without issuing notice to the appellant and therefore, the appellant had no opportunity to place the entire facts before the writ Court. Application of Section 66 of the Waqf 2/10 https://www.mhc.tn.gov.in/judis W.A.No.2011 of 2024Act may not be relevant in the context of the facts exists in the present case. Thus, the writ appeal is to be considered.4. Mr.Mohamed Fayaz Ali, learned counsel for the Waqf Board would also support the contention of the appellant to an extent that Section 66 of the Waqf Act has no direct application and facts of each cases required an adjudication with reference to the documents and the evidences. Regarding the powers of the Board, it is explicitly made available under Section 32 of the Waqf Act. Section 69 provides Power of Board to frame Scheme for administration of Waqf. However, these provisions are not considered by the writ Court. The learned counsel would further contend that since the writ petition was decided at the admission stage, the Waqf Board was not in a position to place the entire facts before the writ Court.5. To understand the Scheme of the Waqf Act in the context of the issues revolving in the present appeal, the Waqf Board amended the Scheme framed by the Civil Court in the year 1954. Amendment was admittedly effected in the year 1995, after the Waqf Act came into force. Therefore, the Waqf Board is empowered to amend the Scheme or to frame a new Scheme by invoking the powers under Section 69 of the Waqf Act.3/10 https://www.mhc.tn.gov.in/judis W.A.No.2011 of 20246. Section 32 of the Waqf Act enumerates Powers and Functions of the Board. Explanation to Section 32 reads as under:“32.Powers and functions of the Board._(1) Subject to any rules that may be made under this Act, the general superintendence of all [auqafs] in a State shall vest in the board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the [auqafs] under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such [auqafs] were created or intended:Provided that in exercising its powers under this Act in respect of any [waqf], the Board shall act in conformity with the directions of the [waqf], the purposes of the [waqf] and any usage or custom of the [waqf] sanctioned by the school of Muslin law to which the [waqf] belongs.Explanation._ For the removal of doubts, it is hereby declared that in this sub-section, '[waqf]” includes a [waqf] in relation to which any scheme has been made by any Court of law, whether before or after the commencement of this Act.”7. Section 32 (2) (d) ( g) stipulates one of the functions of the Board as “to settle Schemes of Management for a Waqf”.4/10 https://www.mhc.tn.gov.in/judis W.A.No.2011 of 20248. Section 66 stipulate Powers of appointment and removal of mutawalli when is to be exercised by the Government. It is an enabling provision conferring powers to the State Government to appoint and remove mutawalli in certain circumstances. However, even for exercise of Powers under Section 66 of the Act, the State Government shall consult the Waqf Board before exercising such powers. Therefore, the power of the Government is conferred in addition to the powers granted to the Waqf Board and to be exercised with the consultation of the Board and under the circumstances as stipulated under Section 66. Therefore, the State Government has no absolute power to appoint or remove mutawalli and the said power absolutely vest with the Waqf Board under the Act.9. Section 69 of the Waqf Act indicates Power of Board to frame Scheme for administration of Waqf. Sub Section 3 reads as under:“(3)Every order made under sub-section (2) shall be published in the prescribed manner, and, on such publication shall be final and binding on the mutawalli and all persons interested in the waqf”.10. In respect of any Scheme or amendment to the Scheme made under Section 69 of the Act, by the Board after Act came into force, an 5/10 https://www.mhc.tn.gov.in/judis W.A.No.2011 of 2024aggrieved person may approach the Tribunal for adjudication. When a Statute contemplates an efficacious alternate remedy, it is to be exhausted by an aggrieved person before approaching the High Court.11. Exhausting the statutory remedy is of paramount importance since the factual findings of the Tribunal would be of greater assistance for the High Court for exercise of the powers of the judicial review under Article 226 of the Constitution of India in an effective manner. In the present case, factual adjudications are required, since the amendment is relating to a Scheme for administration. In the absence of any such adjudication, Courts may not be in a position to form a final opinion. After the Waqf Act came into force, the Board is empowered to revise the Scheme or amend the Scheme as the case may be.12. In the present case, the Original Scheme Suit was decreed in the year 1954 and after the Act came into force, the jurisdiction of the Civil Court, Revenue Court and any other authority has been expressly barred under Section 85 of the Act. Section 85 enumerates that “no suit or other legal proceedings shall lie in any Civil Court, Revenue Court or any other authority in respect of any dispute, question or other matter relating to any 6/10 https://www.mhc.tn.gov.in/judis W.A.No.2011 of 2024Waqf, Waqf property, or other matter which is required by or under this Act to be determined by the Tribunal.” Therefore, the Tribunal has been substituted under the Act, in lieu of the Civil Court and once the jurisdiction of the Civil Court has been expressly ousted under the Waqf Act, the powers conferred on the Waqf Board to revise, modify, annul or amend the Scheme is to be upheld.13. The correctness of the decision taken by the Waqf Board can be tested before the Tribunal constituted under the Act. When an effective mechanism is contemplated under the Scheme of the Act and when an express bar of the jurisdiction of the Civil Court is contemplated under Section 85 of the Act, the findings of the learned Single Judge in the impugned order is not inconsonance with the Scheme of the Act and running counter to the powers conferred on the Waqf Board to amend the Scheme in exercise of its powers.14. In view of the discussion regarding the Scheme of the Waqf Act in the aforementioned paragraphs, a factual adjudication on merits is essential for resolving the issues. Regarding the powers of the Waqf Board for constitution of Scheme or amend the Scheme, it is expressly provided 7/10 https://www.mhc.tn.gov.in/judis W.A.No.2011 of 2024under the Waqf Act and therefore, the parties are to be relegated to approach the Tribunal for adjudication of issues on merits and in accordance with law.15. In view of the facts and circumstances, the writ Order impugned dated 11.04.2023 passed in W.P.No.5622 of 2023 is set aside and the writ appeal stands allowed. There shall be no order as to costs. Consequently, the connected miscellaneous petitions also stands closed.(S.M.S., J.) (K.R.S., J.) 20.03.2025 ssiIndex: Yes/NoSpeaking Order: Yes/NoNeutral Citation Case : Yes/No8/10 https://www.mhc.tn.gov.in/judis W.A.No.2011 of 2024To:1.Tamil Nadu Waqf Board, represented by its Chief Executive Officer, No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai – 600 001.2.The Chief Executive Officer, Tamil Nadu Waqf Board, No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai – 600 001.9/10 https://www.mhc.tn.gov.in/judis W.A.No.2011 of 2024S. M. SUBRAMANIAM., J.AND K. RAJASEKAR., J.ssiW.A.No.2011 of 2024 andC.M.P.No.14328 of 202420.03.2025 10/10