Madras High Court
Madrasa Assowmiathul Aroossia Thaika vs The Chief Executive Officer on 3 July, 2024
Author: C.Saravanan
Bench: C.Saravanan
W.P.(MD) No.11558 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.07.2024
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.(MD)No.11558 of 2024
and
W.M.P.(MD)Nos.10296 and 10297 of 2024
Madrasa Assowmiathul Aroossia Thaika,
Rep. By. Nubail Thaik,
Executive Trustee,
Melatheru,
Kilakarai,
Ramanathapuram District – 623 517. ... Petitioner
Vs.
1.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai - 600 001.
2.The Superintendent,
Ramanathapuram Division,
Tamil Nadu Wakf Board,
No.159/3 and 4, Tahrappm Sayanam Road,
Velipattinam,
Ramanathapuram – 623 504. ... Respondents
Prayer:- Writ Petition filed under Article 226 of Constitution of India for
issuance of a Writ of Certiorari, to call for the records of the first
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W.P.(MD) No.11558 of 2024
respondent vide proceedings dated 04.04.2022 in Na.Ka.No.
9216/AA3/21/IRAMA insofar as restricting the tenure of the Hereditary
Muthavalli for a period of three years and quash the same as illegal.
For Petitioner : Mr.L.Abdul Basith
For Respondents : Mr.K.Jeyamohan
Standing Counsel
ORDER
The petitioner has filed this Writ Petition seeking to quash the impugned order insofar as restricting the tenure of the Hereditary Muthavalli for a period of three years. By the impugned order dated 04.04.2022, the following persons were appointed as Mutawalli, Joint Mutawalli and Executive Trustee of the Petitioner Wakf.
Sl. Name Designation
No.
1. Janab.Alhafiz. Thaika Muhammad Sadaqa Mutawalli /
Managing Trustee
2. Janab. Alhaj. Sayid Abdul Khader Joint Mutawalli / Joint
Managing Trustee
3. Janab.Thaika Nubail Executive Trustee
2. It is submitted that the impugned order unfairly restricts the tenure for a period of three years starting from 27.07.2021 to 26.07.2024. _____________ https://www.mhc.tn.gov.in/judis Page No. 2 of 7 W.P.(MD) No.11558 of 2024 It is submitted that this is clearly contrary to the Proforma of the Petitioner Wakf as also the decision of this Court rendered in Abdul Subhan vs. The Chief Executive Officer Tamil Nadu Wakf Board, CDJ 2003 MHC 2055 [W.P.No.18162 of 2000, decided on 20.10.2003]. A reference was made to Paragraph No.2 of the said order, which reads as under:-
''2. From this, it is seen that the hereditary muthavalliship has been restricted for a period of three years. The Wakf Board has a power under Section 64 of the Wakf Act, 1995 to remove any muthavalli for proved misconduct. Unless a muthavalli is removed, the muthavalli can be appointed. Further a hereditary muthavalliship cannot be converted as muthavalliship for a specific period. Therefore, under the Wakf Act, 1995 the Wakf Board has no power or authority to restrict the period of muthavalliship of a hereditary muthavalli. So, the impugned order is not legally sustainable as it violates the provisions of Act. Hence, the writ petition is allowed and the impugned order is quashed.''
3. Similarly, a reference was also made to the another decision of this Court rendered on 23.08.2023 in W.P.No.19032 of 2023 in the case of Apsar Peeran Shuttari Saheballa vs. The Tamil Nadu Wakf Board, Rep. by its Executive Officer, Chennai, wherein at Paragraph Nos.6 to 8, it has been held as under:-
''6. As far as the contention raised by the learned counsel for the respondent is concerned, in _____________ https://www.mhc.tn.gov.in/judis Page No. 3 of 7 W.P.(MD) No.11558 of 2024 case the respondent/Board receives any complaint against the style of management by the petitioner, it is always open to the respondent/Board to take action against him in accordance with law. In fact, under Section 64 of Waqf Act, the respondent/Board is entitled to remove the Mutawalli under various circumstances enumerated therein. In these circumstances, the restriction imposed in the impugned order restricting the term of office to three years need to be set aside.
7. Accordingly, the condition imposed by the impugned order restricting the term of the petitioner to three years from 31.05.2022 alone is set aside. The petitioner is entitled to hold office of Mutawalli for his life, however, subject to right of the respondent to remove him under Section 64 of Waqf Act on specific grounds enumerated thereunder.
8. With this clarification, this writ petition is allowed to the extent indicated above. No costs.
Consequently, connected miscellaneous petition is closed.''
4. On the other hand, the learned Standing Counsel for the respondents would rely on Paragraph Nos.8 and 9 of the counter affidavit filed by the first respondent, which reads as under:-
''8. I deny the averments in paragraph 8 of affidavit filed in support of the petition and put the petitioner to strict proof same. The Tamil Nadu Waqf Board came to know about the alienation of the waqf properties through a report sent by the waqf inspector on 16.08.2021 and representations from the hughdars of waqf, resolved to restrict the tenure of the muthawalli to safeguard the waqf property from the alienation and to take immediate action to _____________ https://www.mhc.tn.gov.in/judis Page No. 4 of 7 W.P.(MD) No.11558 of 2024 recover the property from the wrongful persons.
9. I further submit that considering the present circumstances in order to protect the interest and welfare of the waqf and proper administration of the waqf, the tenure of the Hereditary Muthawalli is restricted. If the petitioner is performing the charities in accordance with the proforma and is administrating the waqf properly, he can move the Tamil Nadu Waqf Board for tenure extension periodically and no prejudice would be caused.''
5. It is submitted that there have been alienations during the Mutawalliship of Dr.Thaika Shuaib Alim Sahib (Rali) [previous Hereditary Mutawalli], who died on 15.06.2021 and therefore, the rights of the Wakf Board should be left unimpeded in case any alienations have been made.
6. The submissions of the learned counsel for the petitioner and the learned Standing Counsel for the respondents are on par and deserve to be accepted. Consequently, the impugned order dated 04.04.2022, restricting the period of Mutawalliship for a period of three years from 27.07.2021 to 26.07.2024 is liable to be quashed. To that extent, the impugned order is quashed. However, liberty is given to the Wakf Board to take appropriate action under Section 64 of the Wakf Act in case of any misfeasance is observed by the Wakf Board.
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7. This Writ Petition stands allowed with the above observation. No costs. Consequently, connected Miscellaneous Petitions are closed.
Index : Yes/ No 03.07.2024 Neutral Citation: Yes / No Speaking Order / Non-Speaking Order To
1.The Chief Executive Officer, Tamil Nadu Wakf Board, No.1, Jaffar Syrang Street, Vallal Seethakathi Nagar, Chennai - 600001.
2.The Superintendent, Ramanathapuram Division, Tamil Nadu Wakf Board, No.159/3 and 4, Tahrappm Sayanam Road, Velipattinam, Ramanathapuram – 623 504.
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