Tamil Nadu Waqf Board Can't Appoint Muttawali For Waqf Properties Covered By Deeds, Decrees & Court Orders: Madras High Court Full Bench
In such cases State Government under Section 66 Waqf Act would be the appointing authority, the Court held.
A full bench of the Madras High Court has held that Tamil Nadu Waqf Board cannot appoint Mutawallis for Waqf properties governed by deeds, decrees, court orders or schemes as per Section 66 of Unified Waqf Management, Empowerment, Efficiency and Development Act 1995, and in such cases the State Government is the appointing authority. For context a mutawalli is the manager, custodian,...
A full bench of the Madras High Court has held that Tamil Nadu Waqf Board cannot appoint Mutawallis for Waqf properties governed by deeds, decrees, court orders or schemes as per Section 66 of Unified Waqf Management, Empowerment, Efficiency and Development Act 1995, and in such cases the State Government is the appointing authority.
For context a mutawalli is the manager, custodian, or superintendent of a waqf property.
The court held that Section 32 which governs general superintendence power of the Waqf board over waqf properties is not rendered otiose by Section 66 clarifying that the latter does not curtail the board's powers in Section 32 and must be read harmoniously.
For context, Section 32 lists the powers and functions of the Waqf Board shall have general superintendence of all auqaf in a State to ensure that the waqf is properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which waqf was created, inteded.
For context Section 66 states that whenever a deed of waqf or any decree or order of a court of any scheme of management of any waqf 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 waqf, then, notwithstanding anything contained in such deed of waqf, decree, order or scheme, such powers aforesaid shall be exercisable by the State Government.
The proviso however states that where a Board has been established, the State Government shall consult the Board before exercising such powers.
A three judge bench of Justice N Sathish Kumar, Justice R Vijayakumar and Justice L Victoria Gowri in its 204 page order held:
"Accordingly, we answer the reference by holding that the Tamil Nadu Waqf Board does not possess jurisdiction under Section 32 to appoint Mutawallis in respect of waqfs governed by deeds, decrees, court orders or schemes to which Section 66 applies. In such cases, the appointing authority shall be the State Government acting in consultation with the Waqf Board in accordance with Section 66"
The full bench was answering a reference by a single judge who was earlier hearing a writ petition challenging the proceedings of the Tamil Nadu Waqf Board appointing three General Trustees to the Hazrath Tableh Alam Bahadur Shah Nathar Wali Dargah Waqf, Tiruchirappalli, for the triennium commencing from 25.06.2025.
The petitioners claimed that the appointments were without jurisdiction as the waqf was governed by a Decree passed by the Sub Court, Tiruchirappalli in O.S.No. 91 of 1925, whereby the power of appointment stood vested in the Scheme Court.
The petitioners said that by operation of Section 66 of the Act, the appointing authority is the State Government and not the Tamil Nadu Waqf Board.
During the hearing before the Single Judge, reliance was placed on two distinct lines of precedent - one recognising the Board's jurisdiction under Section 32 and the other emphasising the continued relevance of Section 66 and judicial schemes. Finding an apparent conflict amongst binding precedents and considering the recurring importance of the issue affecting the administration of numerous waqfs throughout the State, the Single Judge referred the matter to a larger.
The full bench judgment authored by Justice Gowri held:
1. Section 32 of the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995 continues to govern the Waqf Board's general superintendence over all waqfs within the State, including waqfs governed by deeds of waqf, decrees of Court, judicial orders and schemes of management, as expressly recognised by the Explanation appended to Section 32(1).
2. Meanwhile Section 66 is an independent and special provision confined to the exercise of the specific statutory powers expressly contemplated therein and operates within the limited legislative field consciously assigned to it by Parliament.
3. It further held that the expression "general superintendence" occurring in Section 32(1) and the expression "superintendence" employed in Section 66 are used by Parliament in different statutory contexts and denote distinct species of statutory power.
The court said this confers upon the Waqf Board a continuing, overarching and regulatory supervisory jurisdiction over all waqfs, whereas the latter is confined to the exercise of the specific statutory powers contemplated under Section 66.
The court held that the two expressions are "neither synonymous nor interchangeable" and must receive their ordinary statutory meaning in the context in which each has been employed.
4. Further Sections 32 and 66 are complementary provisions operating in distinct legislative fields and must be construed harmoniously so as to give full effect to both.
"Section 32 neither eclipses nor renders Section 66 otiose, and Section 66 does not curtail or derogate from the Board's general supervisory jurisdiction under Section 32 except to the limited extent expressly provided by the Act,"the court said.
The high court also said that the role of the State government under Section 66 to exercise specific powers the proviso providing consultation with the Waqf board also assumes legislative significance. The court said that by making this consultation mandatory, Parliament has recognised the institutional expertise possessed by the Board in matters relating to waqf administration and has ensured that such expertise informs the decision making process.
It said that Section 66 is not a provision of universal application and does not govern every waqf or every aspect of waqf administration and thus both provisions–section 32 and 66 govern distinct fields. One provision establishes the general supervisory framework of the Act, while the other regulates the exercise of particular powers arising under particular juridical sources.
The court observed that neither provision requires extinction of the other indicating that the "legislative design" of coexistence rather than exclusion.
Meanwhile Justice Vjayakumar while agreeing with the majority judgment, supplemented it by observing that Section 32(1) discloses that the power of general superintendence over all waqf properties (including waqfs governed by schemes framed by any Court of law) stands vested in the Board.
Further Section 32(2)(d) of the Act empowers the Board to settle the scheme of 201 management of a waqf. Section 32(2)(g) confers upon the Board the authority to appoint and remove mutawallis in accordance with the Act.
"Notwithstanding the foregoing, the aforesaid powers shall not be exercisable by the Board where the waqf deed, an order or decree of a Court, or a scheme of management has expressly excluded the Board therefrom and vested such powers in any other authority or Court of law. Upon such express exclusion of the Board's powers under the aforementioned instruments, the said powers shall be exercisable exclusively by the State Government under Section 66 of the Act," the judge said.
The judge further said that the State Government's power under Section 66 is circumscribed to the matters of appointment and removal of mutawallis, settlement or modification of the scheme of management, or superintendence over the waqf. This exercise of power is made conditional upon prior consultation with the Board.
"It is thus manifest that where a waqf deed or subsisting Court decree operates to expressly exclude the Board's jurisdiction, the Legislature, to give full effect to such deed or decree, has deliberately divested the Board of its powers in those limited eventualities and conferred a corresponding, albeit limited, authority upon the State Government. These two provisions therefore operate in mutually exclusive spheres, and no repugnancy arises between them," the judge added.
The judge said that in all cases where a waqf deed, order or decree of a Court or a scheme of management expressly excludes the Board from exercising its power, the Board cannot invoke Section 32 to appoint mutawallis and in such cases, only the State Government can exercise the said power under Section 66 of the Act subject to the conditions stated therein.
Case title: J.Ilayas & Anr. v/s The Government of Tamil Nadu and batch
W.P.(MD)No.24333 of 2025 and W.A.(MD)Nos.3073 and 3110 of 2025