Madras High Court
Mohammed Yusuf vs The Tamil Nadu Wakf Board on 19 April, 2023
Author: Mohammed Shaffiq
Bench: Mohammed Shaffiq
W.P.(MD).Nos.13695 of 2020 etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 29.03.2023
Pronounced on : 19.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P.(MD).Nos. 13695 of 2020, 11081, 24058 of 2018, 23455, 14084,
22535, 25021 of 2022
and
CRP.(MD).No.2079 of 2022
and
W.M.P(MD).Nos. 10153, 13089, 21764, 21765 of 2018, 11377 of 2020,
16713, 17538, 17541, 19121, 19123, 10053, 10054 of 2022
and
C.M.P.(MD) No.9541 of 2022
W.P.(MD).No.13695 of 2020:
Mohammed Yusuf ... Petitioner
Vs.
1.The Tamil Nadu Wakf Board,
Represented by its Chief Executive Officer,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai.
2.The Superintendent of Wakfs,
Tirunelveli Region,Tirunelveli District. ...Respondents
1/68
https://www.mhc.tn.gov.in/judis
W.P.(MD).Nos.13695 of 2020 etc., batch
Prayer:Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Mandamus, directing the 1st respondent to permit
the petitioner to administer the Mohideen Jumma Pallivasal Wakf,
Sambankulam, till a newly elected administrative committee of the Wakf
takes over in light of the order dated 20.12.2011 made by this Court in
W.P(MD) No.14276 of 2011.
For Petitioner in all W.P(MD)s and
CRP(MD) : Mr.M.Mahaboob Athiff
For Respondents
in W.P(MD).No.11081 of 2018 : Mr.N.Mohideen Basha,
Standing Counsel
in W.P(MD).No.23455 of 2022 : Mr.D.S.Haroon Rasheed,
Standing Counsel
in W.P(MD).No.14084 of 2022 : Mr.K.K.Senthil,
Standing Counsel
in W.P(MD).Nos.24058 of 2018,
13695 of 2020, 22535 & 25021
of 2022 and CRP(MD).No.2079
of 2022 : Mr.G.Chandrasekar,
Standing Counsel
COMMON ORDER
The common issue that arises for consideration in this batch of Writ Petitions and Civil Revision Petition is whether the Tamil Nadu Wakf Board (hereinafter referred to as the “Board”), as defined under Section 3(c) 2/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch and incorporated under Section 13 of the Wakf Act, 1995 (hereinafter referred to as the “Act”) or the Chief Executive Officer (hereinafter referred to as “CEO”) appointed under Section 23 of the Act has the authority/power to hold/control elections to individual Wakfs/ auqafs or interfere with electoral issues in terms of the provisions of the Act.
2. Brief Facts:
Before proceeding to deal with the issue/question which is common it may be relevant to give an overview of the facts that may be relevant.
2.1 WP (MD) Nos. 24058 of 2018 and 13695 of 2020:
The Writ Petition in W.P.(MD).No.24058 of 2018 is filed challenging the impugned notification in Na.Ka.No.G.S.26/Va.Ka./P.A/Thi.Veli/2018 dated 16.11.2018 issued by the Superintendent of Wakf, the 2nd Respondent herein. The Petitioner herein is a resident and member of Mohideen Jumma Pallivasal, Sambankulam. The said Pallivasal/Masjid is a Wakf notified under Section 5 of the Wakf Act 1995 (hereinafter referred to as the "Act"). The above Wakf was administered by a body comprising of President and 3/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch 14 other office bearers who were nominated/selected by the General Body/Jamath. It was submitted that the practice (custom), was to appoint Mutawalli in the form of administrative body “by selection and not by election”. It was submitted that the Wakf Board i.e., the 1st Respondent in this Writ Petition had also approved such selection till date. While so, the 2nd Respondent/Superintendent had issued the impugned election notification stated to be on the basis of/pursuant to a letter issued by the Chief Executive Officer the 1st Respondent herein dated 04.06.2018. It was notified that election for a 15 member administrative committee (Mutawalli) through secret ballot would be conducted for the said Wakf. The impugned notification also provided that the electoral college would be finalised by the 2nd Respondent, while laying down the rules for such election. A counter is filed by the 2nd Respondent stating that he is bound by the orders/directions of the 1st Respondent and that conducting elections is necessary to resolve the conflict/difference between two groups. It is submitted that the definition of Mutawalli includes any person appointed according to custom and the appointment to the subject Wakf being 4/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch governed by Custom, there is no authority/power with the Wakf Board to depart from the custom much less conduct the election changing the mode of appointment from Selection to Election. In view of the same the impugned notification was challenged.
During the pendency of the above writ petition, another Writ Petition in W.P.(MD)No. 13695 of 2020 was filed praying for a Writ of Mandamus to direct the 1st Respondent Board to permit the petitioner to administer the subject Wakf till a newly elected administrative committee takes charge while submitting that the Respondents are acting in excess/without jurisdiction in proposing to conduct elections to the Wakf, moreso, as it is contrary to the practice of appointing the Administrative Committee/ Mutawalli by selection.
2.2. W.P. (MD) No. 11081 of 2018 The Writ Petition is filed challenging the impugned order of the 2nd Respondent dated 08.02.2018 whereby pursuant to the orders of this Court in W.P.(MD). No.6864 of 2017 dated 21.09.2017 and on the basis of a representation dated 13.03.2017 submitted by the 4th Respondent, the CEO 5/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch had ordered conduct of election by secret ballot for electing the committee of management to the Masjid/Wakf . The Superintendent of Wakf, Ramnad was appointed as election officer and was further directed to prepare the voters list of Samanthapuram. The impugned order also directs the President of the subject Wakf to cooperate with the Superintendent in preparing the electoral roll unless he is relieved by the Board after taking over the Wakf under direct management under Section 65 of the Act or a new person assumes the office of mutawalli.
The Writ Petition is filed by the serving president of Melapallivasal Wakf. The Wakf is notified under section 5 of the Act, the proforma of the Wakf provides that the Wakf is to be governed by the administrative committee to be selected by the muslim congregation of Samanthapuram in Rajapalayam District. It is submitted that the intention of the founder of the Wakf was to appoint the administrative committee of the Wakf by Selection. It was submitted for more than 6 decades successive committee's appointed by selection has been administering the Wakf. The tenure of the Committee was to expire on 23.03.2017. The subject Wakf was stated to 6/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch have commenced making arrangements for selection of the new administrative committee, while so, the 4th Respondent who is a member and mutawalli of another Jamath called Rajapalayam Muslim Parimala Rowther Jamath is said to have submitted a representation on 13.03.2017, seeking the respondent Board and the CEO to hold election for the Wakf by secret ballot. This Court in W.P.(MD) No. 6864 of 2017 after impleading the petitioners herein as respondents directed the second respondent herein i.e., CEO to consider and pass orders on representation dated 13.03.2017 submitted by the 4th Respondent herein.
The impugned order had been passed pursuant to the enquiry conducted as directed by this Court in W.P.(MD) No.6864 of 2017. The 1st Respondent Board vide impugned order has in view of the alleged domination by the existing managing committee concluded that it warrants election by secret ballot and proceeded to appoint the superintendent of the Wakf to conduct elections. It is submitted that the enquiry is illegal and bad for it has not been made in compliance with Section 70 of the Wakf Act which provides that an enquiry can be initiated or maintained only by an 7/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch application to the 1st Respondent Board supported by an affidavit filed by the applicant. It is submitted that the petitioner had questioned the jurisdiction of the Wakf Board to conduct/interfere with the election of individual Wakf. Further, when the appointment in terms of the proforma and the intention of the founder was to be by selection, the impugned proceeding directing election by secret ballot cannot be sustained. It was further submitted that the impugned proceeding has been made in violation of the principles of natural justice and thus unsustainable. 2.3.WP (MD) No. 23455 of 2022
The Writ Petition is filed challenging the impugned order dated 22.09.2022 issued by the Chief Executive Officer of the Wakf Board (hereinafter referred to as 1st respondent). The petitioner is a Mutawalli of the Muhaideen Andavar Periya Pallivasal and Pudhur Khadar Aulya Dargah Wafq, Bodinayakkannur which is notified under Section 5 of the Wakf Act, 1995. It is submitted that the notification / proforma of the subject Wakf provides that the Mutawalli of the Wakf is to be appointed by selection by 8/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch the members of the Wakf. That the petitioner has been selected as a mutawalli for the period 2014-2017. It was submitted that the property of the Wakf had been encroached and steps were taken to remove the encroachers. As a matter of fact out of 87 encroachers 20 had been evicted and proceedings initiated invoking the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Act, 1975 and appropriate action was contemplated against the remaining encroachers. It is submitted that a proposal was sent by the petitioner to the Wakf regarding the selection of mutawalli. It is however not clear if and when such proposal / representation was submitted by petitioner. It is stated that due to COVID
-19 pandemic lock down was imposed under National Disaster Management Act, 2005 and thus, a new Mutawalli could not be selected. The Petitioner submitted an application dated 27.06.2022 requesting the Board to permit him to continue as a Mutawalli for another year to enable him to complete the task of removing the encroachments. The Board vide proceeding dated 28.06.2022 permitted the petitioner to act as a Mutawalli for the period of 27.06.2022 – 22.06.2023.
9/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch While so, it is submitted that some of encroachers submitted an application / representation dated 15.07.2022 requesting the 1st Respondent/CEO to take over direct management and to hold elections alleging mismanagement and misconduct by the petitioner. It is submitted that the 1st Respondent had called for an enquiry without even serving the copy of representation alleging maladministration by the petitioner nor serving any notice to the petitioner either in person or registered post. The petitioner had submitted a written reply by registered post stating that the entire representation was with a ulterior motive to prevent the removal of encroachment. It was further submitted that the 1st Respondent does not possess power / authority to conduct such enquiry. Any such enquiry must also be by the Board and in compliance with the mandate contained in Section 70 of the Act. However, the 1st Respondent/CEO has proceeded to pass the impugned order to conduct election by secret ballot. It is against this order of the 1st Respondent that the present writ petition has been filed. 10/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch 2.4. WP. No. (MD) 14084 of 2022:
The Writ Petition is filed challenging the impugned notification in Na.Ka.G.S.No.480/Trichy/T.A/V.K./2022 dated 10.06.2022 issued by Superintendent of Wakf, Trichy region, the 2nd Respondent herein. The petitioner herein is a member of Hazrath Shah Baba Fakrudeen (Kattu Bava Pallivasal) Dargah Wakf, Pudukottai, a Wakf notified under Section 5 of the Wakf Act, 1995 in GS. No. 480/PKD. As per the Wakf proforma, the mutawalli of the said Wakf has to be appointed by hereditary succession in terms of the custom prevailing in that region. It is submitted that it is administered by a Committee consisting of 9 members including the President/Mutawalli selected every three years. The Mutawalli is elected amongst the nine office bearers constituting the administrative committee.
The last selection happened on 18.01.2020 and the administrative committee assumed office and the tenure would end on 18.01.2023. While so, the 2nd Respondent herein on the basis of the directions dated 24.03.2022 issued by the CEO issued the impugned notification dated 11/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch 10.06.2022 to conduct an election by secret ballot for the subject Wakf . The impugned notification further provides that a provisional electoral roll list was notified to enable the Jamathars (congregation) to suggest additions/deletions to be made to the said list. Pursuant thereto an electoral list has also been finalised. It was declared that only those members in the electoral list would be permitted to vote and also contest in the elections. It is challenging the said notification the present Writ Petition is filed on the ground that neither the 2nd Respondent Superintendent nor the CEO have the jurisdiction to conduct elections. That the tenure of the previous administrative committee (Mutawalli) is still in force and the subject Wakf proforma does not provide for appointment by election through secret ballot. Thus the impugned notification is unsustainable.
2.5. W.P.(MD) No. 22535 of 2022:
The present writ petition is filed challenging the order dated 27.05.2022 issued by the Chief Executive Officer, Wakf Board the 1 st Respondent herein and election notification dated 14.09.2022 issued by the 12/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch Superintendent of Wakf, Ramanathapuram district. The petitioner is the Secretary of Abubaker Siddik (Rali) Jumma Pallivasal, which is notified in GS No. 209/2021/RMD under Section 5 of the Wakf Act, 1995. As per the Wakf Deed/Proforma the Mutawalli of the Wakf is to be selected once in three years and not to be appointed by election. It is submitted by the petitioner that the President and Secretary i.e., the petitioner was selected by the General Body of the subject Wakf in the year 2016 for a period of three years and the present administrators continued in office by extending their tenure pursuant to resolution passed by the General Body. The Petitioner and the President was reselected for a further period of 3 years i.e., until 09.10.2023 by the General Body comprising of 35 members who are the subscribers to the Wakf . In the meanwhile the petitioner had applied for registration to the Wakf Board vide application dated 11.02.2022 and the Board notified the subject Wakf under registration number 299/2021 wherein the President was shown as the Mutawalli.
While so, one Mr. Asaraf who is not a member / subscriber of the subject Wakf filed a WP (MD) No. 4247 of 2022 seeking direction to the 13/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch board to hold elections to the subject Wakf by considering his representation dated 07.10.2021. This court vide its order dated 10.03.2022 after recording that there are several disputed questions involved including as to whether the petitioner viz., Mr. Asraf is a member of the Jamath, directed the 1st Respondent viz., the CEO to consider their representation dated 11.07.2022 and to pass orders after hearing the Mutawalli. The 1st respondent issued the election notification dated 15.03.2022 without complying with the directions of this Court in WP (MD) No. 4247 of 2022. The same was challenged before this Court in W.P.(MD) 5394 of 2022 and this court was pleased to set aside the proceeding/notification dated 15.03.2022. Thereafter, the 1st Respondent called for hearing and after obtaining written submissions from the petitioner /Mutawaali and Ashraf wherein allegations of misappropriation of the Wakf funds was made and responded. On considering the contentions of both sides, the 1st respondent found vide impugned order dated 27.05.22 that the office bearers of the Wakf were not selected in the presence of the Wakf Officials and and their appointments were not yet approved by the Tamil Nadu Wakf Board. The 14/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch Superintendent of Wakf, Ramnad was directed to take immediate action to constitute administrative committee to the wakf as per the rule of succession. The 2nd Respondent/Superintendent vide order dated 14.09.2022 in disregard to the directions of the first respondent insofar as constitution of the adminstrative committee to be made in consonance with the Rule of Succession had with the view to finalise the electoral roll for the purpose of selecting the administrative committee for the subject Wakf called upon the Jamathars to come forward with identity cards in form of Aadhar etc., within 15 days. It is challenging the above order dated 27.05.22 and notice 14.09.22 the present writ petition is filed on the ground that the Superintendent has proceeded on a misconception of the directions of the CEO, in any view the CEO is not conferred with the power to conduct the election.
2.6. WP (MD) No. 25021 of 2022:
The writ petition is filed challenging the notification dated 01.11.2022 issued by the Superintendent of Wakf , Tirunelveli i.e., the 15/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch second respondent herein on the basis of directives issued by the 1st Respondent CEO. The petitioner is a Mutawalli of Vavar Jummah Pallivasal Wakf which is registered under GS No. 863/TNV and notified under Section 5 of the Act. It is submitted that the Proforma of the Wakf stipulated that the Mutawalli shall be selected by the members of the Wakf every 3 years and not by Election. The subject Wakf is administered by an administrative committee comprising of 17 members and the Secretary of the administrative committee would be the Mutawalli. The petitioner is a member of the subject Wakf. It is submitted that as the tenure of the administrative committee was to expire, it initiated the selection process for appointment of the administrative committee and the Mutawalli. While so, the 2nd respondent had issued the impugned notification to conduct the election through secret ballot contrary to the Proforma which provides for appointment of Mutawalli by selection and not election. The Typed set of papers that has been filed does not contain the Proforma, however, there is no serious objection to the averment in the affidavit that in terms of the Proforma the Mutawalli is to be selected and not to be elected by the 16/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch members of the Wakf. The present writ petition is being filed challenging impugned election notification issued by the 2nd respondent herein i.e., Superintendent of the Wakf, Tirunelveli region pursuant to the directions of the 1st respondent CEO as being bad for want of jurisdiction.
2.7. CRP (MD) No. 2079 of 2022:
The petitioner herein filed an application before the Tamil Nadu Wakf Tribunal, Chennai in O.A. No. 370 of 2019 to declare that the administrative committee elected by the 50 members of the Melapalayam Periya Kuthba Pallivasal, Tirunelveli on 18.10.2019 is valid, and sought for a permanent injunction restraining the Wakf Board and the Wakf Inspector, Tirunelveli from interfering with the administration of the Wakf and to prepare a Scheme to elect the administrative committee for the Wakf.
It is submitted that the subject Wakf is a registered Wakf in G.S.No.778 which has been in existence for more than 100 years. As per the proforma, the Mahasabha (administrative members) will be drawn from the Mohalla (muslim residents) consisting of 16 streets. The Administrative 17/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch members in turn elect the administrative committee which would administer the subject Wakf, this has been the practise followed for several years.
While so, a resolution was adopted by the Mahasabai to dissolve the earlier administrative committee elected for the period between 01.10.2015 to 30.09.2018. On 21.10.2018, 79 new administrative members were elected and they in turn elected the administrative committee. That being so, the 2nd respondent / Superintendent issued a notice dated 17.09.2019 to conduct the election as per the list prepared by him consisting of 54 members. The Jamathars and 79 administrative members of the subject Wakf convened a meeting on 18.10.2019 and elected a new administrative committee in which the petitioner was elected as Secretary and as per the proforma of subject Wakf the same will be valid till 17.10.2022.
Subsequently, the petitioner herein filed an application before the Wakf Tribunal, Chennai wherein it was inter alia prayed that the election conducted on 18.10.2019 be declared as valid. However, the Tribunal held that the petitioner was not entitled to any relief and the original application deserves to be dismissed, as the election dated 18.10.2019 was not 18/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch conducted in the presence of the Wakf Board Members nor with appropriate sanction. Aggrieved by the above order of tribunal the petitioner filed this civil revision petition.
3. The above narration of facts would show that in all the Writ Petitions and the Civil Revision Petition the common question that arises is the power of the Board/CEO to conduct or to direct the Superintendent to conduct elections, moreso, contrary to the mode of appointment provided in the Proforma / Wakf Deed /Custom.
3.A. With the above background, I shall proceed to deal with the issue/question that arises for consideration. At the outset, it may be relevant to note that this Court has issued directions to the Wakf Board to conduct elections for the Wakf / Auqafs on numerous occasions, an attempt was thus made by the Respondent Board to suggest that the power/authority of Wakf to conduct elections is no longer res-integra. Following are some of the judgments relied upon in this regard and the relevant portions of the said orders are extracted below:
19/68
https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch i. The Muthavalli, Jamia Masjid v. The CEO, TN Wakf Board, WP 7646/14, dated 25.01.2019 “6. Admittedly, the Wakf Board alone is entitled to conduct the election to the Wakf . When the Wakf Board is entitled to conduct the election to any registered Wakf , the petitioner cannot prevent the Wakf Board from conducting the election. Now, it is stated that the petitioner without permitting the Wakf Board, the petitioner themselves conducting the election, and managing the Wakf , which is not permissible in law. In the above circumstances, a Wakf Board, being a statutory authority, the petitioners cannot prevent the Board from conducting the election. Hence, the prayer sought in the Writ Petition cannot be granted.” (emphasis supplied) ii. Nari Akbar Basha v. TN Wakf Board, CDJ 2019 MHC 4668 “28. Once the Scheme is framed within the outer limit of six months, there would not be further impediment for the Special Officer or the Board, as the case may be, to conduct the election to elect the managing body for administrating the Wakf for the next term of three years.
29. Such exercise of conducting elections, in the opinion of this Court, can be completed within a period of three months thereafter. Therefore, all together within a period of nine months, since all these exercises can be completed, this Court feels that, the present term given to the Adhoc Committee through the order, which was impugned before the Tribunal, can be restricted to the maximum of ten months from today. Therefore, the term of office of the Adhoc Committee shall be seized at the end of 30.09.2020, before which, the aforesaid exercise of Section 126;framing the Scheme of the Wakf, has to completed and the election to elect the Managing Committee shall also be completed by the Special Officer / Wakf Board of the Tribunal.” (emphasis supplied) iii. Salem Shaharsha Makkan Majid Trust Board v. The Tamil Nadu Wakf Board, CDJ 2011 MHC 3486.
“18. When there is Scheme decree relating to a Wakf , the Wakf Board can exercise its supervisory power under Section 32 of the Wakf Act, within the frame of the Scheme decree, after the expiry of the term of 20/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch office of the elected trustees and also to conduct the election as per the Scheme decree without causing unusual delay in conducting the election.” (emphasis supplied) Similarly, the Kerala High Court in the case of T.K. Muhammed v. Kerala State Wakf Board, 2020 SCC Online Ker 131344, has held as under:
“9. It can be seen from Section 25 that the functions of the Chief Executive Officer shall include doing such acts as may be necessary for, the control, maintenance and superintendence of Wakfs. The Section is widely worded and will include doing such acts necessary for conduct of election to the Managing Committee of a Wakf if the situation warrants” A close look at the above judgments would show that the question regarding the power of the Wakf Board/CEO to conduct elections to individual Wakfs was not contested or it was found for a fact that there was a Scheme decree and the Wakf Board was required to conduct elections as per the Scheme decree. The directions to the Wakf Board to conduct elections to the individual Wakfs were issued by the Courts more out of consent, in any view, orders were passed sub-silentio insofar as the question of power of the Board/CEO to conduct elections to individual Wakfs. It is trite law that a decision on the basis of concession or that which passes sub-
silentio would not constitute precedent. In this regard, it may be relevant to refer to the following judgments:21/68
https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch i. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 :
"50. In Gurdwara Sahib v. Gram Panchayat Village Sirthala (2014) 1 SCC 669 proposition was not disputed. A decision based upon concession cannot be treated as precedent as has been held by this Court in State of Rajasthan v. Mahaveer Oil Industries (1999) 4 SCC 357, Director of Settlements, A.P. v. M.R. Apparao (2002) 4 SCC 638 and Uptron (India) Ltd. v. Shammi Bhan (1998) 6 SCC 538. "
(emphasis supplied) ii. Municipal Corpn. of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 :
“11. A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.
12. In Gerard v. Worth of Paris Ltd. (k). [(1936) 2 All ER 905 (CA)] , the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v.
Bremith Ltd. [(1941) 1 KB 675] , the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was 22/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch decided “without argument, without reference to the crucial words of the rule, and without any citation of authority”, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.” (emphasis supplied)
4. The judgments relied upon by the 1st respondent Board/CEO (hereinafter referred commonly as respondents) do not resolve the controversy viz., power of the Board / Chief Executive Officer to conduct elections as they had been made on consent or passed sub-silentio and thus do not constitute binding precedents.
5. I shall now proceed to deal with judgments / orders relied upon by the petitioners to submit that the respondent / Board / CEO is not vested with the power/authority to conduct elections:
a. KVMA Mohammed Salahudin v. The Chairman Wakf Board and 7 others, W.P. No. 18959 of 2022 dt. 19.10.2022 :
“36. I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the official respondents 1 to 5 23/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch and the learned counsel for the respondents 6 to 8. I have also perused documents filed in support of the present writ petition by the sixth respondent and the official respondents.
37. Though, there are instances of few elections being held under the supervision of the Wakf Board, there are also instance of elections being held without the supervision of the Wakf Board.
38. In my view, it is not mandatory for election to be held under the supervision of the Wakf Board. If election were to be held under the supervision of the Wakf Board, Section 42 would have not been there in the Wakf Act, 1995. For the sake of clarity, Section 42 of the Wakf Act is reproduced below:
Section 42: Change in the management of the Wakf to be notified.— (1) In the case of any change in the management of a registered Wakf due to the death or retirement or removal of the mutawalli, the incoming mutawalli, shall forthwith, and any other person may notify the change to the Board.
(2) In the case of any other change in any of the particulars mentioned in section 36, the mutawalli shall, within three months from the occurrence of the change, notify such change to the Board.”.
39. Section 42 of the Wakf Act, 1995 contemplates cast a duty on the incoming Mutawalli to inform the Wakf Board regarding the change in the Management. Under Section 42(1) of the Wakf Act, 1995 where there is a change in the management of a registered Wakf due to:
a. death; or b. retirement; or c. removal of a Muthawalli.
the incoming Muthawalli has to inform about the same to the Wakf Board forthwith.
40. On the other hand, in case of “any other change, the Mutawalli shall, within three months from the occurrence of the change, notify such change to the Wakf Board.
41. Thus, if the election was held, duty is cast on the incoming Muthawalli to notify the same to the Wakf Board. If the election was to be held under the supervision of the Wakf Board as has been stated by the respondents, the presence of Section 42 (2) would be unnecessary under the Scheme of the Act. In this case, the election was held during November 2011. Therefore, in my view, it is not open for the Wakf Board to hold election.
....
46. The Wakf Board is merely vested with general superintendence over 24/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch the Wakfs under Section 32 of the Wakf Act, 1995.
....
48. The General Body is supreme, the Wakf Board is merely required to exercise the power under the Act and has power of Superintendence only. Thereafter, it was for the Wakf Board to merely recognise the elected body. It is not open for the Wakf Board to medal with the internal affairs of the Wakf as they are to be sorted by the Wakf itself.
(b) Syed Munavvaruddin Quadri vs. Chief Executive Officer, A.P. State Wakf Board and Ors., reported in, 2007 (2) ALT 1992:
“9. … In the context, it is also necessary to examine the question whether it is competent for the Wakf Board to lay down bye-laws or regulations for conducting election of Managing Committee. Section 109 of the Act is Rule making power of the State Government. Section 109(2) inter alia empowers the State Government to make Rules providing for the manner of election of members of the Wakf Board by means of a single transferable Board under Section 14(2) of the Act. As noticed supra in exercise of such power the State has enacted the Election Rules. Section 109 of the Act does not contain any provision empowering the State Government to make Rules for election of members of Managing Committee for being appointed under Section 18 of the Act read with Rule 10 of A.P. Rules. Even insofar as regulation making power is concerned, it is no difference. Section 110 of the Act empowers the Wakf Board to make Regulations with the previous sanction of the State Government.
Such Regulations however cannot be inconsistent with the provisions of the Act or the Rules made thereunder. Sub-section (2) of Section 110 of the Act enumerates as many as twelve matters in respect of which the Wakf Board may make Regulations. The "conduct of election of members of Managing Committee" is very conspicuous by its absence in Section 110(2) of the Act. This would also lend support that the Parliament did not contemplate the election of a Managing Committee of a Wakf . Learned Standing Counsel for Wakf Board does not dispute the legal position. Therefore, the decision of the first respondent to order election of Managing Committee of Jamia Mosque was itself without any authority or power. If this writ petition is allowed, it would amount to resurrecting an illegality. Writ of mandamus cannot be issued to validate an illegal thing see Maharaja Chintamani Saran Math Shahdeo v. State of Bihar AIR 1999 SC 3609.” 25/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch A reading of the above judgments would show that this Court and the Andhra Pradesh High Court on examining the provisions of the Wakf Act had concluded that though the powers of the Wakf Board are wide and extensive, however, it does not enable the Wakf Board to conduct elections. The Andhra Pradesh High Court, after rendering its finding, has recorded that the Counsel for the Board does not dispute the above position, which again casts doubt as to the precedential value of the said judgment.
6. To a pointed question as to whether there are any judgments other than the two referred above dealing with the above question, none was brought to the notice of this Court by either side.
7. Submissions of the Petitioners:
a. That the Wakf Act, 1995 or any other law for the time being in force does not authorize or empower the Tamil Nadu Wakf Board or any of its officials including the Chief Executive Officer to direct or conduct elections to individual Auqafs/Wakf, moreso in disregard/ contrary to Wakf 26/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch Deed or the Rule of succession set-out in the Proforma.
b. Reliance was placed on various provisions of the Act including Section 3(c), 25, 32, (in particular Section 32(2)(o)), 42, 42 (2), 63, 65, 69 and 109(2) of the Act to submit that the Act does not empower the Board to appoint or remove Mutawalli's except "in accordance with the provision of the Act". Importantly, the general power of Control, Administration and Maintenance vested with the Board in respect of Wakf would not extend to conduct elections for the individual Wakfs.
c. Traditionally, the mode of appointing the Muthawalli is governed by the Wakf nama/Proforma by which the Wakf is brought into existence, the Wakf Deed or Custom and usage of the particular Wakf. The Proforma or the notification/register of the Wakfs under Section 37 of the Act among other things records the details regarding the name of Mutawalli, Rule by which Mutawalli's appointment is to be made.
d. That even if mode of appointment of Mutawalli is by election, it does not alter the position that elections is an internal matter to be undertaken by individual Wakfs, in the absence of express provisions 27/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch enabling the Board to direct or conduct elections to individual Wakfs, it would be beyond and in excess of the jurisdiction of the Board to conduct elections.
e. Appointment as Mutawalli must be in consonance/conformity with Proforma/ Wakf Deed or Custom. If the deed does not contemplate appointment by elections, the Wakf Board/CEO has no powers to recast/alter the mode of appointment of a Mutawalli and superimpose election on any of the Wakf in violation of the mode of appointment recorded in the register/notification under Section 37 of the Act i.e., the “Proforma”.
f. While Section 109 (iv) of the Act empowers the State Government to make rules regarding the manner of election of members of the Board under Section 14 of the Act. However, the Parliament had conspicuously not provided for holding of elections to the Wakfs either under the provisions of the Wakf Act nor does it enable the rule making authority to frame rules under the Act regarding elections to individual Wakfs.28/68
https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch g. That Parliament had consciously not vested the Board with the authority to appoint Mutawallis for doing so would result in defeating / disregarding the intention of the Wakifs and deprive the members of the Wakf of the right to appoint the Mutawalli in the mode/manner intended/desired by the Wakif/founder of the Wakf .
h. Reliance was sought to be placed on Articles 19 (1) (c), 26, 29 and 30 of the Constitution of India to submit that any attempt to vest the Board with the power to conduct election may infringe/impair the rights guaranteed under the above Articles of the Constitution of India in support thereof it was submitted as under:
i. Article 26 of the Constitution guarantees to every religious denomination, right to establish and maintain institutions for religious and charitable purposes including managing its own affairs in matters of religion and to administer the property in accordance with law. As a result, if the Wakf Board which is a statutory body and which qualifies as a State for the purposes of Article 12 of the Constitution if understood to be vested with the power/authority to hold elections, would impinge on the right 29/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch guaranteed under Article 26 of the Constitution of India.
ii. That Wakfs are administered by Jamath's i.e., Congregation/Association of persons, associated to form and administer the Wakf. Article 19(1)(c) of the Constitution of India guarantees freedom to form associations subject to restrictions under clause (4) to Article 19 of the Constitution of India. Any action of the State or its instrumentality to either include or remove members from such association would offend Article 19 (1) (c) of the Constitution of India. Thus, if the Wakf Board is to be understood as being vested with the Authority to conduct elections which would include the right to decide/finalize the electoral list which includes the power to induct or exclude members would offend Article 19 (1) (c) of the Constitution of India.
iii. That Article 29 of the Constitution of India provides to any section of community the right to conserve their unique culture, language and script. It is important to protect the autonomy of the members of such community in administering the institutions such as the Wakf etc., to further the above object. If the Board is understood to be conferred with the 30/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch power to decide on the mode of selecting the Mutawalli or finalizing/settling the electoral list and thereby the membership of the Wakf, the autonomy and the purpose of establishment of the Wakf would be lost and such institutions may lose their identity.
iv. That the Wakf's may also administer minority educational institutions which enjoy freedom from State's intervention in terms of Article 30 (1) of the Constitution, which would be impinged if the Board is understood as being vested with the authority/power to conduct/direct elections to individual Wakfs .
i. That the Wakf Act, 1995 was enacted among other things only as a measure to regulate the overall functioning of Wakfs in the State and to provide for a general superintendence over individual Wakfs which would not include the power/authority to direct/conduct elections.
j. Reliance was placed on the Statement of Objects and Reasons of Wakf Act, 1995, the judgment of Andra Pradesh High Court in Syed Munavvarudin Quadri and the judgment of this Court in K.V.Mohammed Salahudin in W.P. No. 18959 of 2022, dated 19.10.2022 in support of the 31/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch contention that the Wakf Board does not have the authority/power to conduct elections.
8. Submissions of the Respondents:
To the contrary, it was submitted by the Respondents as under:
a. That the powers and functions of the Board are provided under Section 32 of the Act. The Board is vested under Section 32(o) of the Act with the powers and functions to do all such acts as may be necessary for the control, maintenance and administration of the Wakf, thus the Board would have the power to conduct elections on the basis of the doctrine of implied power.
b. Reliance was also placed on Sections 3(i), 37, 42, 64, 65, 67 and 69 of the Act, to submit that on a combined reading of above provisions, the Board having been vested with the power to ensure smooth and proper functioning and management of the Wakf in the State, the Board would have the power to conduct elections on the basis of the doctrine of implied power.
32/68
https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch c. That the High Courts had on several occasions directed the Board to conduct elections to individual Wakf's. In this regard, reliance was sought to be placed on the following judgments:
i. T.K. Muhammed v. Kerala State Wakf Board, 2020 SCC Online Ker 13144 ii. The Muthavalli, Jamia Masjid v. The CEO, TN Wakf Board, WP 7646/14, dated 25.01.2019 iii. Nari Akbar Basha v. TN Wakf Board, CDJ 2019 MHC 4668 iv. Salem Shaharsha Makkan Majid Trust Board v. The Tamil Nadu Wakf Board, CDJ 2011 MHC 3486.
9. Heard both sides. Perused the materials on record including Written Submissions and Common Notes of submissions filed by both sides.
10. To answer the question that arises for consideration viz., whether the Wakf Board or the CEO has the power to conduct elections for individual Wakfs or interfere with electoral issues, it may be necessary to understand the following:
33/68
https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch a. Nature of the Wakf.
b. Functions and modes of appointment of Mutawalli. c. Power of the Wakf Board/CEO.
While examining the above aspects it is necessary to bear in mind that it is trite law that the Act must be read as whole. In this regard, it may be useful to refer to the decision of the Hon'ble Supreme Court in RBI v. Peerless General Finance & Investment Co. Ltd., (1987) 1 SCC 424 at page 450 “33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its Scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the Scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.
(emphasis supplied)
11. Keeping the above principle in mind, I shall proceed to examine the relevant provisions of the Act, with a view to understand the scope and 34/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch width of the powers of the Board/CEO to see if the Board / CEO is conferred with power / authority to conduct / control elections for the individual Wakfs.
A. Nature of Wakf – Section 3 (r) and its Scope “3(r) “Wakf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes
(i) a Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;
(iii) “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iv) a Wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the Wakf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and “waqif” means any person making such dedication.” On a reading of the definition of Wakf, it would be evident that the following ingredients must be satisfied to qualify as a “Wakf ” in terms of Section 3(r) of the Act viz., (1) There must be a dedication of property, (2) The dedication must be permanent, 35/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch (3) The subject of dedication must belong to the dedicator or settlor, (4) The dedicator or the settlor must be a person belonging to the Islamic faith and capable of making the dedication, and (5) The object of dedication must be religious, pious or charitable as recognised by Muslim Law.
B. Nature, role, appointment of Mutawalli -
“3(i) “Mutawalli” means any person appointed, either verbally or under any deed or instrument by which a Wakf has been created, or by a competent authority, to be the mutawalli of a Wakf and includes any person who is a mutawalli of a Wakf by virtue of any custom or who is a naib-mutawalli, khandim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any Wakf or Wakf property:
Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office-bearer of such committee or corporation;” i. Mutawalli – Nature and Status:
a. Mutawalli is a person appointed verbally or under a Wakf deed, or by a competent authority and includes a person appointed by virtue of any custom.
b. The term "Mutawalli" also includes naib-mutawalli, khadim, mujawar, sajjadanashin, amin or any other person appointed by a mutawalli to perform the duties of a mutawalli, 36/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch c. A committee, a society or a corporation can also act as a mutawalli. d. The legal status and position of a mutawalli of a Wakf under the Muslim law is that of a manager or superintendent. ii. Modes of Appointment of Mutawalli:
a. Appointment by Wakif:
The primary right of appointment of a mutawalli rests with the founder of the Wakf, known as “wakif”. The appointment may be oral or in writing. The Wakif can appoint himself as the first mutawalli. The Wakif can frame a Scheme for administration of the Wakf, including succession to the office of mutawalli, indicating the qualifications for the office. The Wakif may nominate the successors by name, or indicate the class together with their qualifications, from whom the mutawalli may be appointed.
In other words, the wakif is primarily entitled to appoint a mutawalli for the management of the trust. In the appointment of mutawalli, the directions of the founder should not be disregarded except for the manifest benefit of the Wakf.
37/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch b. Appointment by Custom:
The definition of Mutawalli includes "any person who is a mutawalli of a Wakf by virtue of any custom". Thus appointment of a mutawalli may be made according to custom and usage.
c. Appointment by congregation:
In cases of institutions confined to a locality or to a particular school, for example, mosque or Kabirstan, the appointment may be made by the Muslim congregation known as the "Jamaat", according to custom and usage.
d. Hereditary right to the office of mutawalli Muslim law does not recognise any right of inheritance or rule of hereditary succession to the office of mutawalli, subject to the following two exceptions viz., (1) Where the founder has laid down the rule of hereditary succession to the office in which case the rule has to be adhered to, and (2) Where the office of mutawalli becomes hereditary by custom in which case, the custom should be followed.
38/68
https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch e. Right to office by prescription The right to manage and administer a religious institution can be acquired by prescription, such a right is recognised in law and is enforceable by a court of law.
12. Power and functions of the Board/CEO:
Having examined the nature of Wakf, various modes of appointment of a Mutawalli, I shall now examine the provisions touching upon the powers of the Board/CEO with regard to appointment of Mutawalli's and management/administration of Wakf's.
(i) Section 32 and its Scope:
(1) Subject to any rules that may be made under this Act, the general superintendence of all Wakfs in a State shall vest in the Board established in the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the Wakfs 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 Wakfs were created or intended:
Provided that in exercising its powers under this Act in respect of any Wakf, the Board shall act in conformity with the directions of the wakif, the purposes of the wakf and any usage or custom of the Wakf sanctioned by the school of Muslim law to which the Wakf belongs.
Explanation - For the removal of doubts, it is hereby declared that in this sub-section, "wall" includes a wald in relation to which any Scheme has been made by any court of law, whether before or after the commencement of this Act.39/68
https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be-
…
(g) to appoint and remove mutawallis in accordance with the provisions of this Act;
...
(o) to generally do all such acts as may be necessary for the control, maintenance and administration of Wakfs .
….
The respondent Board placed emphasis on Sub-section (o) to Section 32 of the Act, to suggest that the Board being under an obligation to ensure that the Wakf are maintained, controlled and administered, it must be understood that the power to conduct elections is impliedly included and part thereof.
To appreciate the above argument, it is necessary to bear in mind Sub-clause (g) to Sub-section (2) to Section 32, would show that appointment and removal of Mutawalli by the Board shall be done “in accordance with the provisions of the Act”. The pre-emptive expressions “in accordance with the provisions of the Act”, employed in Sub-clause (g) to Sub-section (2) to Section 32 qualifies the power to appoint and remove Mutawalli and excludes the appointment of Mutawalli by other modes or in 40/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch any manner or in circumstances other than that provided under the Act.
Section 32 (2) (o) of the Act, which confers general powers of superintendence, control and administration of the Wakf, cannot be read in isolation but in harmony and consistent with the restrictions contained in Section 32 (2) (g) of the Act in view of the expressions employed “in accordance with the provisions of the Act”, while examining the question as to whether it would take within its fold the right to appoint mutawalli by conducting elections. In other words, the powers conferred on the Board under Section 32 (2)(o) must be read consistent with and restricted by the above pre-emptive expressions “in accordance with the provisions of the Act” employed in Section 32 (2)(g) of the Act with regard to appointment and removal of Mutawalli. Any attempt to understand Section 32 (1) or 32 (2) (o) of the Act which confers power to generally do all such acts as may be necessary for the control, maintenance and administration of Wakfs as conferring the Board with the authority/power to appoint mutawalli by conducting elections dehors or contrary to the Wakf deed, custom etc., would render Section 32(2) (g) to appoint and remove mutawallis “in 41/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch accordance with the provisions of this Act”, redundant and would run contrary to the maxim “expressum facit cessare tacitum”. A construction which ought to be avoided. In this regard, it may be relevant to refer to the following judgments:
a. Union of India v. Tulsiram Patel, (1985) 3 SCC 398 "70. The position which emerges from the above discussion is that the keywords of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase “this clause shall not apply” is mandatory and not directory. It is in the nature of a constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) or from giving any kind of opportunity to the concerned government servant. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity by a process of inference or implication. The maxim “expressum facit cessare tacitum” (“when there is express mention of certain things, then anything not mentioned is excluded”) applies to the case. As pointed out by this Court in B. Shankara Rao Badami v. State of Mysore (1969) 1 SCC 1 this well-
known maxim is a principle of logic and common sense and not merely a technical rule of construction. The second proviso expressly mentions that clause (2) shall not apply where one of the clauses of that proviso becomes applicable. This express mention excludes everything that clause (2) contains and there can be no scope for once again introducing the opportunities provided by clause (2) or any one of them into the second proviso.” (emphasis supplied) b. CCI v. SAIL, (2010) 10 SCC 744 "60. Expressum facit cessare tacitum — express mention of one thing implies the exclusion of other. (Expression precludes implication). This doctrine has been applied by this Court in various cases to enunciate the principle that expression precludes implication. (Union of India v. Tulsiram Patel (1985) 3 SCC 398 It is always safer to apply plain and primary rule of construction. The first and primary rule of construction is 42/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch that intention of the legislature is to be found in the words used by the legislature itself. The true or legal meaning of an enactment is derived by construing the meaning of the word in the light of the discernible purpose or object which comprehends the mischief and its remedy to which an enactment is directed. (State of H.P. v. Kailash Chand Mahajan 1992 Supp (2) SCC 351 and Padma Sundara Rao v. State of T.N. (2002) 3 SCC
533.” (emphasis supplied) c. Satyavir Singh v. Union of India, (1985) 4 SCC 252 "(22) The governing words of the second proviso to clause (2) of Article 311, namely, “this clause shall not apply”, are mandatory and not directory and are in the nature of a constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) or from giving any kind of opportunity to the concerned civil servant in a case where one of the three clauses of the second proviso becomes applicable. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity to show-cause by a process of inference or implication. The maxim expressum facit cessare tacitum (“when there is express mention of certain things, then anything not mentioned is excluded”) applies to the case. This well-known maxim is a principle of logic and common sense and not merely a technical rule of construction as pointed out in B. Shankara Rao Badami v. State of Mysore (1969) 1 SCC 1.” (emphasis supplied) d. Shankara Rao Badami v. State of Mysore, (1969) 1 SCC 1 “14. The well known maxim expressum facit cessare tacitum is indeed a principle of logic and commonsense and not merely a technical rule of construction. The express provision in Article 31 (2) that a law of acquisition in order to be valid must provide for compensation will therefore necessarily exclude all suggestion of an implied obligation to provide for compensation sought to be imported into the meaning of the word “acquisition” in Entry 36 of List II. In the face of the express provision of Article 31(2), there remains no room for reading any such implication in the legislative heads. The entries in the Lists of the Seventh Schedule are designed to define and delimit the respective areas of legislative competence of the Union and State Legislatures. Such a context 43/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch is hardly appropriate for the imposition of implies restrictions on the exercise of legislative powers, which are ordinarily matters for positive enactment in the body of the Constitution.” (emphasis supplied) Applying the logic and reasoning in the above judgments and maxim, that express mention of a thing excludes that which is not mentioned, it would be clear that the power of appointment or removal of Mutawalli having been expressly circumscribed by the expressions "in accordance with the provisions of the Act", it excludes appointment in any other manner nor can Section 32 (2)(o) of the Act, though confers powers of supervision control and maintenance, be understood as encompassing within it the power to appoint Mutawalli.
13. It is thus necessary to examine the other provisions under the Act which provides for or touches upon the appointment and removal of Mutawalli by the Board/CEO, to understand the scope of the restrictive expressions “in accordance with the provisions of the Act”. I also intend to examine the provisions dealing with the administration and management of the Wakf by the Board / CEO. The above enquiry would in turn lead one to 44/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch Sections 23, 25, 37,42, 63 to 66, 69 and 109 of the Act, which are the provisions dealing with the appointment of Mutawalli as well as administration and management of the Wakf, to see if the Board / CEO has the authority to conduct elections for individual Wakfs as sought to be contended by the Respondent Board.
14. Against the above backdrop, I shall proceed to examine the scope and purport of Sections 23, 25, 37, 42, 63 to 66, 69 and 109 of the Act, to see if the action of the Wakf Board / CEO in calling for / conducting / controlling elections to individual Wakfs or issuing directions to Superintendent to conduct elections can be sustained under the above provisions.
A. Register of Wakf – Scope - Section 37 of the Act -:
37. Register of Wakf- (1) The Board shall maintain a register of auqaf which shall contain in respect of each Wakf copies of the Wakf deeds, when available and the following particulars, namely:--
(a) the class of the Wakf;
(b) the name of the mutawallis;
(c) the rule of succession to the office of mutawalli under the Wakf deed or by custom or by usage;
(d) particulars of all Wakf properties and all title deeds and documents 45/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch relating thereto;
(e) particulars of the Scheme of administration and the Scheme of expenditure at the time of registration;
(f) such other particulars as may be provided by regulations.
The above statutory register contains the details which inter alia includes, class of Wakfs, name of Mutawalli's, rule of succession etc. The appointment of Mutawalli ought to be made in conformity with the particulars contained in the register.
B. Change in the management of Wakfs to be notified - Section 42 of the Act and its Scope:
(1) In the case of any change in the management of a registered Wakf due to the death or retirement or removal of the mutawalli, the incoming mutawalli shall forthwith, and any other person may notify the change to the Board.
(2) In the case of any other change in any of the particulars mentioned in section 36, the mutawalli shall, within three months from the occurrence of the change, notify such change to the Board.
This provision enjoins the mutawalli to notify to the Board of any change in the management of a registered Wakf due to death, removal or retirement of the previous mutawalli. Any change in the particulars mentioned in Section 36 of the Act relating to registration of Wakfs must 46/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch also be duly notified by the mutawalli to the Board within three months from the date of the change. This is a procedural provision and does not in any manner deal with the substantive right or power to appoint a mutawalli. I have dealt with the above provision inasmuch in W.P.No.18959 of 2022 dated 19.10.2022, this Court had relied on the above provision to support its conclusion that the Wakf Board/CEO is not conferred / vested with the authority/power to conduct elections. I must clarify that though I agree with the conclusion that the Board nor the CEO has the power/authority to conduct elections but the reasons which impels to me to that conclusion are different from that which weighed with the Court in the above Writ Petition. C. Power to appoint mutawallis in certain cases- Section 63 of the Act and its Scope:
“When there is a vacancy in the office of the mutawalli of a Wakf and there is no one to be appointed under the terms of the deed of the Wakf , or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.” 47/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch The above provision which provides for appointment of Mutawalli would get attracted only under two circumstances viz.,
a) When there is a vacancy in the office of the mutawalli of a Wakf and there is no one to be appointed under the terms of the deed of the Wakf (or)
b) Where the right of any person to act as mutawalli is disputed.
If the above circumstances exist, the Board may then appoint any person to act as mutawalli for such period and on such conditions as it may think fit. Section 63 of the Act only authorises/enables the Board to appoint Mutawalli as a temporary/stop gap arrangement. Importantly, the language employed in the above provision “if there is no one to be appointed under the deed of the Wakf”, is indicative of the primacy that is sought to be accorded by Parliament to the Wakf deed which reflects the intention of the Wakif. The Board is required to step in and aid if the circumstances set-out in Section 63 of the Act exist. I do not see the above provision in any manner conferring authority/power on the Board to appoint Mutawalli dehors the circumstances covered by the said provision viz., vacancy in the 48/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch office of the Mutawalli of a Wakf and absence of anyone to be appointed under the terms of the deed of the Wakf, or where the right of any person to act as mutawalli is disputed, thus the power to conduct elections to appoint Mutawalli cannot be founded on Section 63 of the Act.
Secondly, the above provision only provides for “appointment” by the Board and does not confer the Board with the authority to conduct elections. Appointment of a Mutawalli by an authority viz., the Wakf Board in the instant case cannot be stated or equated with appointment by election. “Appointment” is the action of nominating to or placing in an office by an authority vested with the power to appoint. On the other hand “election” would mean the act of choosing, electing, a free choice between different thing, preference, the act of choosing a person to fill an office or employment by manifestation of preference by ballot, uplifted hands or voice.
It is thus beyond the cavil of any doubt that Section 63 of the Act authorising the Board to appoint Mutawalli would operate only under circumstances set-out therein and temporary in nature. Importantly it does 49/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch not empower the Board to conduct elections generally to appoint Mutawalli's.
D. Assumption of direct management of certain auqaf by the Board - Section 65 of the Act - Scope:
65. Assumption of direct management of certain auqaf by the Board (1) Where no suitable person is available for appointment as a mutawalli of a Wakf , or where the Board is satisfied, for reasons to be recorded by it in writing, that the filling up of the vacancy in the office of a mutawalli is prejudicial to the interests of the Wakf , the Board may, by notification in the Official Gazette, assume direct management of the Wakf for such period or periods, not exceeding five years in the aggregate, as may be specified in the notification.
(2) The State Government, may, on its own motion or on the application of any person interested in the Wakf call for the records of any case for the purpose of satisfying itself as to the correctness, legality or propriety of the notification issued by the Board under sub-section (1) and pass such orders as it may think fit and the orders so made by the State Government shall be final and shall be published in the manner specified in sub- section (1).
(3) As soon as possible after the close of every financial year, the Board shall send to the State Government a detailed report in regard to every Wakf under its direct management, giving therein-
(a) the details of the income of the Wakf for the year immediately preceding the year under report:
(b) the steps taken to improve the management and income of the Wakf ;
(c) the period during which the Wakf has been under the direct management of the Board and explaining the reasons as to why it has not been possible to entrust the management of the Wakf to the mutawalli or any committee of management during the year; and such other matters as may be prescribed.
(4) The State Government shall examine the report submitted to it under sub-section (3), and after such examination issue such directions or 50/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch instructions to the Board as it may think fit and the Board shall comply with such directions or instructions on receipt thereof.
This provision provides the Wakf Board with the authority to assume direct management under the circumstances set-out therein. Sub-section (1) to Section 65 postulates a vacancy in the office of the mutawalli of a Wakf and where no suitable person is available for the appointment (or) where the Board is satisfied that the filling up of the vacancy will be prejudicial to the interest of the Wakf, the Board may then by notification in the Gazette take over direct management of the Wakf for a period not exceeding five years in the aggregate.
Importantly, the above provision only enables the Board to assume direct management but is not vested with the power to conduct elections to the office of Mutawalli. This provision is again temporary in nature and enables the Board to step in to ensure that the Wakf does not suffer any detriment due to existence of circumstance set out in the said provision. It would thus be clear that the above provision would get attracted only under circumstances provided therein and cannot be understood as conferring power on the Board to conduct elections to individual Wakf. 51/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch E. Powers of appointment and removal of mutawalli when to be exercised by the State Government - Section 66 of the Act and its Scope:
.. Whenever a deed of Wakf or any decree or order of a court of any Scheme of management of any Wakf provides that a court or any authority other than a Board may appoint or remove a mutawalli or settle or modify such Scheme of management or otherwise exercise superintendence over the Wakf, then notwithstanding anything contained in such deed of Wakf , decree, order or Scheme, such powers aforesaid shall be exercisable by the State Government:
Provided that where a Board has been established, the State Government shall consult the Board before exercising such powers.
(emphasis supplied) The above provision is again indicative that the State Government is empowered to appoint or remove a Mutawalli where any deed of Wakf or any decree or order of a court or any Scheme of management provides that a court or any authority other than the Board may exercise the above powers. It does not vest/confer authority/power on the government to conduct election to individual wakf.
F. Power of Board to frame Scheme for administration of wakf - Section 69 of the Act and its Scope (1) Where the Board is satisfied after an enquiry, whether on its own motion or on the application of not less than five persons interested in any waqf, to frame a Scheme for the proper administration of the waqf, it may, by an order, frame such Scheme for the administration of 52/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch the waqf, after giving reasonable opportunity and after consultation with the mutawalli or others in the prescribed manner.
(2) A Scheme framed under sub-section (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.
(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:
Provided that any person aggrieved by an order made under this section may, within sixty days from the date of the order, prefer an appeal to the Tribunal and after hearing such appeal, the Tribunal may confirm, reverse or modify the order:
Provided further that the Tribunal shall have no power to stay the operation of the order made under this section.
(4) The Board may, at any time by an order, whether made before or after the Scheme has come into force, cancel or modify the Scheme.
(5) Pending the framing of the Scheme for the proper administration of the waqf, the Board may appoint a suitable person to perform all or any of the functions of the mutawalli thereof and to exercise the powers, and perform the duties, of such mutawalli This section empowers the Board on its own motion or on the application of not less than five persons interested in any wakf to frame a Scheme for the administration of that wakf in consultation with the mutawalli and the applicants, if it is satisfied that the framing of a Scheme is necessary or desirable. The sine qua non for exercising this power by the 53/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch Board is the necessity or desirability of framing a Scheme for the proper administration of the wakf in question. Where the wakf is being properly and satisfactorily administered, there is no room for the Board to exercise the powers under this section. The paramount consideration in framing a Scheme is the welfare and interest of the general body for whose benefit the Wakf was created.
Again this provision does not enable/empower the conduct of elections by the Board. It only provides for framing a Scheme for administration of the Wakf if it is shown that the circumstances warranting invoking the power under Section 69 exist.
G. State Government's Power to make Rules – Section 109 and its Scope:
....
(1) The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act, other than those of Chapter III.
(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:-
(i) the qualifications required to be fulfilled by a person to be appointed as a mutawalli under clause (i) of section 3;
….
(iv) the manner of election of members of the Board by means of a single 54/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch transferable vote, under sub-section (1) of sub-section (2) of section 14;
(v) the terms and conditions of service of the Chief Executive Officer under sub-section (2) of section 23;
(vi) (via) the period within which the mutawalli or any other person may produce documents related to Wakf properties under sub-section (2) of section 31;
...
(xvii) the manner in which consultation may be made with mutawalli under sub-section (1) of section 69;
A reading of Section 109 of the Act which enables the State Government to frame Rules would show that Section 109(2)(iv) of the Act enables the State Government to frame Rules for the manner of election of members of the Board. However, there is no provision enabling framing of Rules for conduct of elections for the individual Wakf by the Board.
15. On a cumulative reading and close analysis of the above provisions viz., Sections 32, 37, 42, 63, 65, 66, 69 and 109 of the Act the following position would emerge:
i. Section 32 (2)(g) of the Act confers the Board with the power to appoint and remove Mutwalli. However, the same ought to done “in accordance with the provisions of the Act”, resultantly the power of the 55/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch Board to appoint or remove Mutawalli is circumscribed by the provisions of the Act.
ii. Section 63 of the Act provides for appointment of Mutawalli by the Board under two circumstances viz., a. If there is a vacancy to the office of mutawalli and there is no one to be appointed in terms of the Deed (or) b. If the right of person to act a Mutawalli is disputed.
The above Section recognises the primacy to be accorded to the Wakf Deed with regard to the appointment of Wakif and the provision would get attracted only if there is no one to be appointed as Mutawalli in terms of the wakf deed. The provision does not confer power/authority on the Board to conduct elections.
iii. Section 65 of the Act enables the Board to assume direct management of the Wakf if circumstances set-out in the said section warranting such action exist viz., a. No suitable person being available for appointment as Mutawalli (or) 56/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch b. If the Board is satisfied that filling up of the vacancy to the post of Mutawalli is prejudicial to the interest of the Wakf.
The above section only provides for assumption of direct management and does not authorise the Board to conduct elections to individual Wakfs .
iv. Section 69 of the Act enables framing of a Scheme by the Board on its own motion or on the application of not less than 5 persons interested in a Wakf if the Board finds it desirable to frame a Scheme for the proper of administration of the Wakf .
16. It appears that none of the above provisions enables the Board to conduct elections. I intend to make clear that reference is made to Sections 65 and 69 of the Act, though they do not govern appointment of Mutawalli but deal with assumption of direct management and framing of Scheme by the Wakf Board, only to indicate that Parliament had vested the Board with the power to assume management or to frame a Scheme, if there is maladministration or circumstances set-out under Sections 65 and 69 of the 57/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch Act exist warranting exercise of such stringent measures. However, the Wakf Board/CEO has not been vested with the authority to conduct elections even in such circumstances. It thus appears on a reading of the Act as a whole and the provisions consistent and harmoniously with each other, that Parliament was conscious of the possible mischief/evils of maladministration which in turn would affect interest of the Wakf, has taken care to provide remedial measures to suppress such mischief in the form of assumption of direct management and framing of Scheme for the administration of Wakf under the circumstances set out in section 65 and 69 of the Act, but not the power to conduct elections. This apparently is in view of the fact that elections to individual Wakf's are an internal matter and must be left to the free will and wisdom of the body/association/organisation. It thus is beyond doubt that the power of the Respondent/Board though wide does not take within its fold the power to conduct elections.
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17. I shall now proceed to examine the duties, powers of Chief Executive Officer to see if power/authority is conferred with the Chief Executive Officer to conduct elections to individual Wakfs. A. Duties and powers of Chief Executive Officer - Section 25 and its Scope:
"(1) Subject to the provisions of this Act and of the rules made thereunder and the directions of the Board, functions of the Chief Executive Officer shall include,
(a) investigating the nature and extent of Wakf and Wakf properties and calling whenever necessary, an inventory of Wakf properties and calling, from time to time, for accounts, returns and information from mutawallis;
(b) inspecting or causing inspection of Wakf properties and accounts, records, deeds or documents relating thereto;
(c) doing generally of such acts as may be necessary for the control, maintenance and superintendence of Wakf .
(2) In exercising the powers of giving directions under sub-section (1) in respect of any Wakf the Board shall act in conformity with the directions by the Wakf in the deed of the Wakf the purpose of Wakf and such usage and customs of the Wakf as are sanctioned by the school of Muslim law to which the Wakf belongs.
(3) Save as otherwise expressly provided in this Act, the Chief Executive Officer shall exercise such powers and perform such duties as may be assigned to him or delegated to him under this Act.
The Chief Executive Officer (CEO) is the Ex-Officio Secretary of the Board and functions under the Administrative Control of the Board in terms of Section 23 (3) of the Act. The CEO is conferred with the authority/power 59/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch to investigate the nature and extent of Wakf properties, call for an inventory of Wakf properties and accounts, returns and information from mutawallis. The CEO is also conferred with the power to inspect or cause inspection of the Wakf properties, accounts, records, deeds or documents relating thereto. The CEO has generally to do all such acts as may be necessary for the proper control, maintenance and superintendence of Wakfs. In exercising these powers the Chief Executive Officer and the Board shall act in accordance with the directions of the Founder, the purpose of the Wakf and custom and usage of the particular school to which the Wakf belongs. There is no provision brought to my notice enabling the CEO to conduct elections to the individual Wakfs. Reliance on Section 25(1) (c) of the Act which provides that the functions of the Wakf would include doing generally of such acts as may be necessary for the control, maintenance and superintendence of Wakf, would not take within its ambit the power to conduct elections in the absence of any express provision conferring power to conduct election by the CEO. 60/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch
18. Doctrine of Implied Power:
There was an attempt to suggest that the Board/CEO would have the power to conduct elections on the basis of the “Doctrine of Implied Power” in view of Section 32(2) (o) and 25(1)(c) of the Act, which vests the Board to do all acts necessary for the control, maintenance and administration of Wakf and CEO to do generally such acts as may be necessary for the control, maintenance and superintendence of Wakf. The above submission is grossly misconceived. “Implied Power” is invoked where the statute confers on an authority/power to do some act, it would then by necessary implication carry with it the power to do such acts which are indispensable for the purpose of carrying out such acts which they are empowered to do.
This court on an analysis of the various provisions of the Act has found that there is no power vested with the Board to conduct elections. Power to conduct elections is an act/power which is substantive in nature. This Court having already found that the Board/CEO is not conferred with the authority to conduct elections. In the absence of the statute vesting such power, the same cannot be exercised by invoking the doctrine of implied power for the 61/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch said doctrine would have no application in such circumstances. “Implied power” presupposes conferment of power to do substantive act and by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes. Doctrine of implied power cannot be used as a means to assume power to do substantive acts. In this regard it may be useful to refer to the judgment of Hon'ble Supreme Court in the case of Bidi, Bidi Leaves and Tobacco Merchants' Association v. State of Bombay, 1962 Supp (1) SCR 381:
20. “One of the first principles of law with regard to the effect of an enabling act”, observes Craies, “is that if a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view [Craies on Statute Law, p. 239] ”.
The principle on which this doctrine is based is contained in the legal maxim “Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa ease non potest”. This maxim has been thus translated by Broom thus:“whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect”. Dealing with this doctrine Pollock, C.B., observed in Michael Fenton and James Fraser v. John Stephen Hampton [(1857-1859) 117 R.R. 32 at p. 41 : II Moo. PC. 347] “it becomes therefore all important to consider the true import of this maxim, and the extent to which it has been applied. After the fullest research which I have been able to bestow, I take the matter to stand thus : Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something will be supplied by necessary intendment”. This doctrine can be invoked in cases “where an Act confers a jurisdiction it also confers by implication the power 62/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch of doing all such acts, or employing such means, as are essentially necessary to its execution”. In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. In such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead-letter and cannot be enforced unless a subsidiary power is implied. This position in regard to the scope and effect of the doctrine of implied powers is not seriously in dispute before us.
(emphasis supplied)
19. Though submissions had been made that the power to conduct elections if vested with the Board would violate the Constitutional guarantee under Articles 19 and 21 of the Constitution of India, had been noted in the earlier part of the judgment. I intend to clarify that this Court does not intend to examine the same for the need would have arisen only if this Court were to find that the power of the Wakf Board / CEO would also include power / authority to conduct elections. Having negatived the above contentions put forth by the Board I would think it is not necessary to examine the above question.
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20. In the light of the discussion, there is no doubt in my mind that neither the Wakf Board nor the CEO is conferred with the authority/power to conduct election or to change the mode of election as set-out in the Wakf Deed/Proforma or Custom followed in appointing the Mutawalli nor is it open to the Board/ CEO to direct Superintendent to conduct elections nor can the appointment of Mutawalli be declared bad only on the premise that the same was not made in the presence of the officials of the Board. This would not preclude the Respondent Board from initiating action under Sections 65, 69 of the Act or any other provisions of the Wakf Act, if circumstances so exist warranting exercise of such power.
21. In view of the conclusion that the Board/ CEO does not have the power / authority to conduct elections and that the mode of appointment ought to be conformity with the Proforma of the Wakf Deed and the intentions of the Wakif or in accord with the Custom /Usage the following orders/directions are made:
64/68
https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch a. The impugned notification in W.P.(MD) No. 24058 of 2018 dated 16.11.2018 in Na.Ka.No.G.S.26/Va.Ka./P.A/Thi.Veli/2018 calling for elections is set-aside. The present adminstrative committee/Mutawalli shall take steps for appointment of the Administrative committee/Mutawalli in accordance with the Proforma /Wakf Deed i.e., by Selection within a period of 12 weeks from the date of receipt of a copy of this Order.
b. In W.P.(MD). No. 11081 of 2018, the impugned notification dated 08.02.2018 in Proc.No.1837/14B3/VNR calling for elections is set-aside.
c. In W.P. (MD). No. 23455 of 2022, the impugned notification dated 22.09.2022 in R.C.No.15999/09/B8/Theni calling for elections is set-aside.
d. In W.P. (MD). No. 14084 of 2022, the impugned notification dated 10.06.2022 in Na.Ka.G.S.No.480/Trichy/T.A/V.K./2022 calling for elections is set-aside.
e. In W.P. (MD). No. 22535 of 2022, the directions issued by the CEO dated 27.05.2022 is set-aside and consequently the notification of the 2nd Respondent/Superintendent dated 14.09.2022 for conducting election is also set-aside.
65/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch f. In W.P. (MD). No. 25021 of 2022, the impugned notification dated 01.11.2022 in Na.Ka. GS. No.863/V.K./Tha.A./TVL/2022 calling for elections is set-aside.
g. In C.R.P. (MD). No. 2079 of 2022, in respect of the impugned order in O.A.No. 370 of 2019 passed by the Tamil Nadu Wakf, Tribunal, Chennai this Court finds that the reasoning for declaring the election to be invalid viz., the same was not conducted in the presence of the officials of the Wakf Board is devoid of any merit and therefore it is set-aside.
22. The administrative committee/ Mutawalli of the respective Wakfs in the above Writ Petitions viz., W.P.(MD).Nos. 11081, 24058 of 2018, 23455, 14084, 22535, 25021 of 2022, shall take steps to appoint the Mutawalli in accordance with the Proforma/Wakf Deed/Custom expeditiously. The mode of appointment of officer bearers/Mutawalli shall be in conformity with the Proforma / Wakf Deed and the intention of the Wakif.
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23. The above directions shall not preclude the Respondent/Board from exercising their powers under Section 65 or 69 of the Act so as to assume direct management or framing Schemes for the administration of individual wakfs, if circumstance exist warranting the same.
24. With the above directions, the Writ Petitions and Civil Revision Petition are disposed of. Consequently, connected miscellaneous petitions are closed. No Costs.
19.04.2023 Index: Yes/No Internet: Yes/No Speaking order/Non-speaking order Neutral Citation: Yes/No shk/mka 67/68 https://www.mhc.tn.gov.in/judis W.P.(MD).Nos.13695 of 2020 etc., batch MOHAMMED SHAFFIQ, J.
shk/mka To:
1.The Tamil Nadu Wakf Board, Represented by its Chief Executive Officer, No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai.
2.The Superintendent of Wakfs, Tirunelveli Region,Tirunelveli District.
W.P.(MD).Nos.13695 of 2020 etc., batch 19.04.2023 68/68 https://www.mhc.tn.gov.in/judis