BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
19. 06.2014 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN and THE HONOURABLE MS.JUSTICE V.M.VELUMANI Writ Petition (MD) No.15524 of 2012 and Civil Revision Petitions (PD) (MD)Nos. 2461, 2262, 2296, 2567, 2631, 2666 of 2012 and 236 and 73 of 2013 Writ Petition (MD) No.15524 of 2012 K.S.Sharfudeen ... Petitioner Vs. 1.Union of India, Rep by its Secretary to Government, Ministry of Law & Justice, 4th Floor, A Wing, New Delhi. 2.The State of Tamil Nadu, Rep by its Secretary to Government, Backward Classes and Most Backward Classes, Minority Welfare Department, Fort St., George, Chennai 600 009. 3.The Tamil Nadu Wakf Board, Rep by its Chairman, No.1 Jaffer Sirong Street, Vallal Seethakathi Nagar, Chennai 600 001. ... Respondents In C.R.P.(PD)(MD)No.2461 of 2012 S.Mohamed Aslam ... Petitioner Vs. 1.M.K.N Madarasa Trust, Adirampattinam Rep by its Secretary, Adirampattinam. 2.S.J.Abdul Jaleel 3.M.Mohamed Mohideen 4.Naina Mohamed Abubucker 5.N.K.Rafeeq 6.N.Naina Mohamed 7.N.B.Raazik 8.S.J.Abdul Hassan @ S.J.Abul Hassan 9.S.Mohamed Mohideen 10.K.S.Abdul Shakoor 11.K.S.Sharfudeen ... Respondents In C.R.P.(PD)(MD)No.2262 of 2012 S.Mohamed Mohideen ... Petitioner Vs. 1.S.J.Abdul Jaleel 2.K.S.Sharfudeen ... Respondents In C.R.P.(PD)(MD)No.2296 of 2012 H.Abdul Cader ... Petitioner Vs. K.Abdul Kadher ... Respondent In C.R.P.(PD)(MD)No.2567 of 2012 S.J.Abdul Hassan @ S.J.Abul Hassan ... Petitioner Vs. 1.M.K.N Madarasa Trust, Adirampattinam Rep by its Secretary, Adirampattinam. 2.S.J.Abdul Jaleel 3.M.Mohamed Mohideen 4.Naina Mohamed Abubucker 5.S.Mohamed Aslam 6.N.K.Rafeeq 7.N.K.Naina Mohamed 8.N.B.Raazik 9.S.Mohamed Mohideen 10.K.S.Abdul Shakoor 11.K.S.Sharfudeen ... Respondents In C.R.P.(PD)(MD)No.2631 of 2012 M.Shamsudeen ... Petitioner Vs. 1.M.J.Jaseem Mohamed 2.M.A.Abdul Jabbar 3.H.Mohamed Ibrahim ... Respondents In C.R.P.(PD)(MD)No.2666 of 2012 K.S.Abdul Shakoor ... Petitioner Vs. 1.M.Abdul Rahim 2.A.Haleem 3.A.M.B.Aminudeen 4.A.M.Abdul Kadhi 5.N.K.Rafeeq 6.Mohamed Aslam 7.B.Udhuman 8.K.H.Mohammed Haneef 9.M.I.Ahamed Anwar ... Respondents In C.R.P.(PD)(MD)No.236 of 2013 K.S.Abdul Shakoor ... Petitioner Vs. 1.K.Abdul Khader 2.A.Abdul Shukoor 3.K.Ahamed Rasool 4.M.Mohamed Ibrahim 5.S.J.Abdul Jaleel 6.K.S.Sharfudeen 7.M.J.Jaseem Mohamed 8.M.A.Abdul Jabbar 9.H.Mohamed Ibrahim ... Respondents In C.R.P.(PD)(MD)No.73 of 2013 S.Mohamed Aslam ... Petitioner Vs. 1.M.K.N Madarasa Trust, Adirampattinam Rep by its Secretary, Adirampattinam. 2.K.Abdul Khader 3.A.Abdul Shukoor 4.K.Ahmed Rasool 5.M.Mohamed Ibrahim 6.S.J.Abdul Jaleel 7.K.S.Sharfudeen 8.M.J.Jaseem Mohammed 9.M.A.Abdul Jabar 10.H.Mohamed Ibrahim ... Respondents Prayer in W.P(MD)No.15524 of 2012: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Declaration, declaring that the impugned provisions of Explanation II of Section 32(1) and 32(2)(g) of the Wakf Act, 1995 as unconstitutional, void and ultra vires. Prayer in Civil Revision Petitions (PD)(MD)Nos.2461, 2262, 2567, 2631 of 2012 and 73 and 236 of 2013 filed under Article 227 of the Constitution of India, against the fair and decretal order passed in O.S.No.6 of 1970, dated 21.09.2012 on the file of the Principal District Court, Thanjavur. Prayer in Civil Revision Petition (PD)(MD)No.2666 of 2012 filed under Article 227 of the Constitution of India, against the fair and decretal order passed in O.S.No.6 of 1970, dated 31.03.2008 on the file of the Principal District Court, Thanjavur. !For Petitioner : Mr.R.Viduthalai, (In W.P(MD)No.15524/2012) Senior Counsel for Mr.Veera.Kathiravan For Petitioner : Mr.V.K.Vijayaragavan (In C.R.P.PD(MD)No.2461/2012) For Petitioner : Mr.A.S.Mujibur Rahman (In C.R.P.PD(MD)No.2262/2012) For Petitioner : Ms.Vijayashanthi (In C.R.P.PD(MD)No.2296/2012) For Petitioner : Ms.N.Krishnaveni (In C.R.P.PD(MD)No.2567/2012) For Petitioner : Mr.K.K.Ramakrishnan for (In C.R.P.PD(MD)No.2631/2012) Mr.K.Guhan For Petitioner : Mr.H.Arumugam (In C.R.P.PD(MD)No.2666/2012) For Petitioner : Mr.H.Arumugam (In C.R.P.PD(MD)No.236/2013) For Petitioner : Mr.M.R.S.Prabhu (In C.R.P.PD(MD)No.73/2013) ^For 2nd Respondent : Mr.B.Pugalenthi, Special Government Pleader. For 1st Respondent : Mr.D.Nallathambi For 3rd Respondent : Mr.K.K.Senthil (In W.P(MD)No.15524/2012) For Respondents 1 &11: Mr.Veera.Kathiravan For 2nd Respondent : Mr.S.Deenadhayalan Mr.S.C.Herold Singh (for Non party) M/s.Ajmal Associates, (for Non party) Mr.M.J.Jesseem Mohammed (for Non party) Mr.J.Sulthan Basha (for Non party) Mr.K.K.Senthil for (In C.R.P.PD(MD)No.2461/2012) Wakf Board For 1st Respondent : Mr.S.Deenadhayalan For 2nd Respondent : Mr.Veera.Kathiravan Mr.M.R.S.Prabhu, for Caveator (In C.R.P.PD(MD)No.2262/2012) For 1st Respondent : Mr.J.Sulthan Basha (In C.R.P.PD(MD)No.2631/2012) For 8th Respondent : Mr.J.Sulthan Basha For 7th Respondent : Mr.Veera.Kathiravan (In C.R.P.PD(MD)No.73/2013) :COMMON
ORDERWhile all the Civil Revision Petitions (except C.R.P.(PD)(MD)No.2666 of 2012) filed under Article 227 of the Constitution, arise out of the appointment of several persons as trustees of the M.K.N.Madarasa Trust, Adirampattinam, in a scheme suit on the file of the Principal District Judge, Thanjavur, the writ petition is by the 11th respondent in the Civil Revision Petition in C.R.P (PD) (MD)No.2461 of 2012, challenging the constitutional validity of the Explanation under Section 32(1) and clause (g) of sub Section (2) of Section 32 of the Wakf Act, 1995. C.R.P.(PD)(MD)No.2666 of 2012 is filed under Article 227 of the Constitution, challenging a similar order of appointment of trustees passed by the Scheme Court for the previous term namely 2008-2011. 2.We have heard Mr.R.Viduthalai, learned Senior Counsel for the writ petitioner, who is also one of the hereditary trustees appointed by the trial Court, Mr.Veera.Kathiravan, learned counsel for the 11th respondent in the Civil Revision Petition in C.R.P (PD) (MD)No.2461 of 2012, Mr.D.Nallathambi, learned counsel for the Union of India, Mr.B.Pugalenthi, learned Special Government Pleader for the State of Tamil Nadu, Mr.K.K.Senthil, learned Standing Counsel for the Tamil Nadu Wakf Board, Mr.V.K.Vijayaragavan, Mr.F.Mohammed Yusuf, Mr.A.S.Mujibur Rahman, Mr.K.K.Ramakrishnan and H.Arumugam, learned counsel for the petitioners in the Civil Revision Petitions. 3.By two deeds of gift executed more than a century ago on 16.02.1900 and 06.04.1901 one Haji Khadir Mohideen Marakayar of Athiramapattinam in Thanjavur District endowed a vast extent of wet and dry land measuring about 1500 acres, with the noble object of providing religious education through Madarasas. The endowment was known as Madurasathul-salahi- adramil Filaki otherwise known as M.K.N.Madarasa Trust of Adirampattinam. 4.The management of the trust was vested with a committee of trustees consisting of the founder trustee Khadir Mohideen Marakayar and his three brothers and the son of one pre-deceased brother. 5.As per the recitals of the deeds of trust, six male line descendants of the family of the founder trustees are eligible to become trustees. Since the eldest founder member Khadir Mohideen Marakayar did not have any issues, his three brothers represented the trust. 6.The District Court, Thanjavur framed a scheme for the proper administration of the trust, in a suit filed under Section 92 of the Code of Civil Procedure in O.S.No.21 of 1952. The scheme was amended further on 10.03.1954 and the same was confirmed by the Supreme Court on 16.01.1962. 7.Again by a fresh decree passed in O.S.No.6 of 1970, the original scheme was amended and a fresh scheme was to be in place. As per the scheme, the District Court, Thanjavur, was actually nominating the trustees, once in three years. Every time a nomination was made, it was invariably challenged before this Court, making this trust gain huge popularity. 8.When the term of office of the members of the board of trustees, expired on 31.03.2011, the District Court, invited applications by making due publication in the newspapers on 30.12.2010 and 20.01.2011. The appointment was for two hereditary trustees from each of the three branches totaling to six hereditary trustees apart from three non hereditary trustees. The trustees newly selected were supposed to hold office for a period of three years, from 01.04.2011 to 31.03.2014. 9.In response to the advertisement issued in the local dailies as well as in the notice boards, 10 applications were received from the male lineal descendants of the first branch, five applications received from second branch and 11 applications received from the third branch. The parties also exchanged objections to the applications of each other. 10.After considering all the applications as well as the objections raised on all sides, the Principal District Judge, Thanjavur passed an order dated 21.09.2012, appointing the following persons to the board of trustees for a period of three years with effect from 22.09.2012 First Branch 1)K.Addul Khader 2)A.Abdul Shukoor Second Branch 1)K.Ahamed Rasool 2)M.Mohamed Ibrahim Third Branch 1)S.J.Abdul Jaleel 2)K.S.Sharfudeen Non Hereditary Trustees Branch :
1. M.J.Jaseem Mohamed 2)M.A.Abdul Jabbar 3)H.Mohamed Ibrahim 11.Challenging the appointments so made by the learned Principal District Judge, Thanjavur by his order dated 21.09.2012, five Civil Revision Petitions came to be filed one after another in C.R.P. (PD)(MD)Nos.2262, 2296, 2461, 2567 and 2631 of 2012. Subsequently, two more Civil Revision Petitions came to be filed in C.R.P(PD)(MD)No.73 and 236 of 2013 against the order of the District Court dated 21.09.2012. Apart from these, there is one revision petition filed in C.R.P.(PD)(MD)No.2666 of 2012 against the order dated 31.03.2008 passed by the Scheme Court for the previous period. 12.Since all the Civil Revision Petitions arose under Article 227 of the Constitution out of an order passed by the Principal District Judge in a scheme decree, these Civil Revision petitions were posted before the learned Judge holding the port folio for such type of cases. On 02.11.2012, the first Civil Revision Petition came up for hearing and it was adjourned to 28.11.2012. The second Civil Revision Petition came on 30.11.2012 and it was posted after two weeks. The third Civil Revision Petition came up on 20.11.2012 and it was adjourned to 22.11.2012. On 22.11.2012, the Standing Counsel for the Wakf Board and the learned counsel for the Caveators took notice and this Court directed the first three Civil Revision Petitions to be listed together on 28.11.2012. 13.On 28.11.2012, G.Rajasuria,J passed the following order and adjourned the Civil Revision Petitions to 10.12.2012: Heard the learned counsel appearing on both sides. 2.At the time of hearing, Mr.Veera.Kathiravan, learned counsel appearing for the respondents 1 and 11 would submit that there are other selected members and they are not the parties herein and any decision taken without hearing them, would not be justifiable. 3.Hence, I am of the considered view that notice could be ordered to the other selected members who are not parties herein. Whereupon, the learned counsel for the petitioner, as directed by this Court, seeks time to serve notice on those persons also informing them about the matter to be argued relating to Section 32 of the Wakf Act, 1995 and more specifically with reference to the explanation appended to sub section (1) to Section 32 of the Act. 4.Time is granted for service of notice in any one of the legally recognised modes including telegraphic notice, returnable by 10.12.2012. 5.List the matter on 10.12.2012 at 02.15 p.m. 14.On 10.12.2012, the learned Judge passed the following order in Civil Revision Petitions (PD)(MD)Nos.2461, 2262 and 2296 of 2012:- Some of the non-parties in C.R.P(PD)(MD)No.2461 of 2012 were served with notice as per the order of this Court.
2. Mr.S.C.Herold Singh, learned Counsel undertakes to file vakalat for the non-party Mr.A.Abdul Shakoor.
3. M/s.Ajmal Associates, undertakes to file vakalat for the non- party Mr.M.J.Jesseem Mohammed.
4. The learned Counsel for the revision petitioner would state that for other non-parties, R.P.A.D were sent along with telegraphic notices and acknowledgement is awaited.
5. On behalf of the Wakf Board, Mr.K.K.Senthil, learned Counsel undertakes to file vakalat on notice having been given to him.
6. In C.R.P(NPD)(MD)No.2262 of 2012, Mr.G.Ravi Sankar, learned Counsel for the revision petitioner would submit that the alleged elected persons relating to third Branch are all on record and the Advocates are appearing for them.
7. The learned Counsel for the revision petitioner in C.R.P.(MD)No.2567 of 2012 would submit that the said Civil Revision Petition is related to the above batch of Civil Revision Petitions and service of notice to the respondents is awaited.
8. List the matters on 13.12.2012 at 02.15 p.m., as a first case, along with C.R.P(MD)No.2567 of 2012. 15.On 13.12.2012, when six Civil Revision Petitions were listed for hearing, it was brought to the notice of this Court that a writ petition in W.P(MD)No.15524 of 2012 had been filed by one of the appointees challenging the constitutional validity of the Explanation under Section 32 (1) and clause (g) of sub Section (2) of Section 32 of the Wakf Act, 1995. Therefore, the learned Judge passed the following order on 13.12.2012: Heard both sides. 2.At the time of hearing, Mr.Veera Kathiravan, learned Counsel appearing for the respondents 1 and 2 has filed a memo and submitted that the matter may be referred to a Larger Bench. He would also further submit that his clients filed a Writ Petition in W.P(MD)No.15524 of 2012, challenging the vires of the explanation, to Section 32(1) of the Wakf Act, 1995 before the Division Bench of this Court and when the matter came up for hearing, the Division Bench intended to have the matter before a newly constituted Bench for this purpose. 3.Whereupon Mr.V.K.Vijayaragavan, learned Counsel appearing for the Revision Petitioner would argue placing reliance on the objections filed by him to the memo and also on the following decisions:- 1)Syed Thajuddin Vs. Syed Mohideen and Others reported in (2011) 2 MLJ105 2)A.K.Khalifulla and Others Vs. S.A.Gulam Rasool and another reported in (2007) 6 MLJ4323)Mohamed Mujeebur Rahman Vs. The State of Tamil Nadu and others reported in 2011 Writ L.R.1008 4)Judgment in C.R.P.NPD.Nos.1816 & 2164 of 2012, dated 25.07.2012. According to him unambiguously and unequivocally, the precedents would highlight and spotlight that the District Judges are no more having jurisdiction over the scheme formulated by the District Court earlier in view of the explanation appended to Section 32(1) of the Wakf Act. The District Judge exercised his power quite antithetical to the embargo contained in the said provision of law. In such a case, the newly selected persons are having no right to continue in office. He would also hasten to add that absolutely there is no necessity for referring the matter to the Larger Bench in view of law having got settled by virtue of the aforesaid precedents cited by him.
5. Mr.K.K.Senthil, learned Counsel appearing for the Wakf Board by placing reliance on the order dated 16.11.2011 passed by this Court in C.S.No.117 of 1954 would submit that in that decision, unlike in other decisions, the learned Single Judge would hold that only the State Government has got jurisdiction over such schemes already formulated by the Courts. Whereas such a view is not found spelt out in the other decisions relied on by the learned Counsel Mr.V.K.Vijayaragavan appearing for the Revision Petitioner.
6. At this juncture, I recollect the following maxims:- Actus Curiae Nemiem gravabit [an act of the Court will prejudice to one].. Constructio legis non facit injuriam [The construction of the law does not work an injury]..
7. One indubitable and incontrovertible fact is that the exercise of jurisdiction by the District Judges turned out to be an ill wind that blew no one any good. Not to put too fine a point on it, in view of this situation, I would like to observe that in the fitness of things these matters could be got listed before the Bench to be newly constituted in respect of W.P(MD)No.15524 of 2012 and all the parties herein shall make endeavours to approach the Honourable Senior Judge of this Bench or the Honourable Chief Justice of Madras High Court for getting these matters listed before that Bench at the earliest point of time. Till then, I am of the considered view that status quo order has to be passed as otherwise, the newly selected members, would exercise their powers without any fetter. The four Honourable Single Judges of this Court held uniformly that the District Judges, after the commencement of the Wakf Act, 1995 had no jurisdiction at all to exercise their supervisory control regarding the scheme formulated earlier by the Courts, and their power to exercise such supervisory control regarding the scheme formulated earlier by the Courts, got extinguished. A Fortiori, an interim order to be passed by invoking Article 227 of the Constitution of India, is a must, as otherwise it would lead to an unprecedented pellmell and confabulation in addition to pandemonium. 8.Therefore it is hereby ordered that status quo shall be maintained by all concerned, which shall mean that there should not be any alienation or encumbrance of the Wakf properties and there shall be no purchase of any property or spending of any huge amounts etc. The minimum day to day running of the institutions under the Wakf concerned alone shall be carried on by incurring minimal expenditure and there shall not be any major decision taken and there shall not be any new appointment to any post or removal of any one from any post and as such, status quo shall be maintained as above till these matters are seized of by such Bench referred to supra. 16.Thereafter, the revision petitions came up on 21.01.2013. On the said date, the learned Judge passed the following order: Heard both sides.
2. The learned Counsel for the revision petitioner would submit that earlier this Court has passed the order in C.R.P.(MD)Nos.2461, 2262, 2296 and 2567 of 2012 dated 13.12.2012, enabling the parties to get cited those matters before a larger Bench to be constituted and also passed interim order.
3. The earlier revision petitions were filed relating to the appointment of Trustees belonging to one Branch. Now, the present Civil Revision Petition is focussed against the appointment of Trustees in general.
4. The names of the other respondents were printed in the cause list.
5. The learned Counsel for the respondents 1 and 8 would submit that filing of this Civil Revision Petition is nothing but an abuse of process of Court and earlier, the same Civil Revision Petitions filed relating to the same prayer and subject matter and hence, the present Civil Revision Petition is a surplusage and not maintainable.
6. The learned Counsel for the revision petitioner would also submit that now as per the earlier order of this Court, the matter is pending Constitution of a larger Bench. In the meanwhile, the revision petitioner seeks an urgent relief for appointment of receiver.
7. I would like to observe that the earlier dated 13.12.2012 would mutatis mutandis be applicable to the present Civil Revision Petition. Hence, in this Civil Revision Petition also, I would like to pass the similar order as under:
8. At this juncture, I recollect the following maxims:- Actus Curiae Nemiem gravabit [an act of the Court will prejudice to one].. Constructio legis non facit injuriam [The construction of the law does not work an injury]..
9. One indubitable and incontrovertible fact is that the exercise of jurisdiction by the District Judges turned out to be an ill wind that blew no one any good. Not to put too fine a point on it, in view of this situation, I would like to observe that in the fitness of things these matters could be got listed before the Bench to be newly constituted in respect of W.P(MD)No.15524 of 2012 and all the parties herein shall make endeavours to approach the Honourable Senior Judge of this Bench or the Honourable Chief Justice of Madras High Court for getting these matters listed before that Bench at the earliest point of time. Till then, I am of the considered view that status quo order has to be passed as otherwise, the newly selected members, would exercise their powers without any fetter. The four Honourable Single Judges of this Court held uniformly that the District Judges, after the commencement of the Wakf Act, 1995 had no jurisdiction at all to exercise their supervisory control regarding the scheme formulated earlier by the Courts, and their power to exercise such supervisory control regarding the scheme formulated earlier by the Courts, got extinguished. A Fortiori, an interim order to be passed by invoking Article 227 of the Constitution of India, is a must, as otherwise it would lead to an unprecedented pellmell and confabulation in addition to pandemonium.
10. Therefore it is hereby ordered that status quo shall be maintained by all concerned, which shall mean that there should not be any alienation or encumbrance of the Wakf properties and there shall be no purchase of any property or spending of any huge amounts etc. The minimum day to day running of the institutions under the Wakf concerned alone shall be carried on by incurring minimal expenditure and there shall not be any major decision taken and there shall not be any new appointment to any post or removal of any one from any post and as such, status quo shall be maintained as above till these matters are seized of by such Bench referred to supra". 17.In view of the above order, the writ petition as well as all the Civil Revision Petitions were tagged together and posted before the Division Bench, so that the issue could be finally settled. 18.On 25.02.2013, a Division Bench of this Court passed the following order:- Considering the nature of dispute and the allegations made by either side in the Civil Revision Petitions and the fact that the Writ Petition is filed challenging the provisions of Section 32(1) of the Wakf Act, 1995, this Court feels that as an interim arrangement, it is but necessary that the administration of the Trust should vest in a neutral party. Accordingly, when such suggestion was put forward to the members of the Bar appearing for the parties herein, it is unanimously agreed that the Hon'ble Mr.Justice K.Sampath, Judge (Retired), High Court, Madras, may be requested to act as Interim Administrator for a period of four weeks. 2.As the Central Government is hereby directed to file counter affidavit within a period of three weeks, learned counsel suggested that it is appropriate to fix the office of the Administrator for the above- mentioned four weeks. After ascertaining the convenience of Hon'ble Mr.Justice K.Sampath, this Court appoints Hon'ble Mr.Justice Sampath, Judge (Retired), High Court, Madras, as the Administrator of M.K.N.Trust, Adirampattinam, Pattukkottai, to take care of the day-to-day affairs of the Trust for a period of four weeks from today. 3.Considering the nature of work involved, this Court feels that an honorarium of Rs.2,00,000/- (Rupees two lakhs only) be given to the Hon'ble Mr.Justice K.Sampath, Judge (Retired), High Court, Madras, from and out of the funds of the Trust. Apart from the said fee, travelling, staying and other incidental expenses shall be borne by the Trust. The administrative staff should render all assistance to the Hon'ble Administrator in discharging the day-to-day administrative functions of the Trust. A copy of this order should also be marked to the Hon'ble Mr.Justice K.Sampath. 19.The only point canvassed by the petitioners in all the Civil Revision Petitions is that after the issue of the Wakf Act, 1995, it is only the Tamil Nadu Wakf Board that has the power to appoint trustees to a wakf including a wakf in relation to which a scheme has already been made by a Court of law either before or after the commencement of this Act. Section 32 of the Wakf Act 1995 is to the said effect. Section 32(1) and Section 32(2)(g) alone are sufficient for the determination of the issue on hand. Hence, they are extracted as follows:- 32.Power and functions of the Board:-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 or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the wakfs under its superintendence are property 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 wakf, 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, wakf includes a wakf in relation to which any scheme has been made by any Court of law, whether before or after the commencement of this Act. 2)Without prejudice to the generality of the foregoing power, the functions of the Board shall be- a).... b).... c)... d)... e)... f).... g)to appoint and remove mutawallis in accordance with the provisions of this Act. 20.It is not in dispute that there are at least four decisions rendered by different Hon'ble Judges of this Court to the effect that after the Wakf Act, 1995 came into force, the Civil Court lost its power to make appointment of trustees or to frame or modify the schemes in respect of wakfs. These decisions are as follows:- 1)Syed Thajuddin Vs. Syed Mohideen and Others, (2011) 2 MLJ105 2)A.K.Khalifulla and Others Vs. S.A.Gulam Rasool and another, (2007) 6 MLJ4323)Mohamed Mujeebur Rahman Vs. The State of Tamil Nadu and others, 2011 Writ L.R.1008 and 4)Judgment in C.R.P.NPD.Nos.1816 & 2164 of 2012, dated 25.07.2012. 21.Therefore, on the short ground that on and from the date of commencement of the Wakf Act, 1995, the Civil Court's jurisdiction to frame or modify a scheme stands ousted, the petitioners in all the Civil Revision Petitions, assailed the order of the Principal District Judge, Thanjavur. Interestingly, the beneficiaries of the order of the District Court, Thanjavur who have been appointed to the board of trustees, themselves appear to be convinced that the four learned Judges have taken a consistent view that the Civil Court's jurisdiction is now ousted. As a matter of fact, one of the candidates appointed by the order impugned in the Civil Revision Petitions has come up with the writ petition challenging the vires of the Explanation to Section 32 (1) and Clause (g) of sub section (2) of Section 32, only on account of the fact that as per these provisions, the Civil Court does not have jurisdiction any more. Therefore, if constitutional validity of these statutory provisions is tested, all the Civil Revision Petitions would automatically fall in line. Therefore, we would first take up the writ petition challenging the constitutional validity of the aforesaid provisions. W.P(MD)No.15524 of 2012 22.We have already extracted Section 32(1) as well as Section 32(2)(g). The constitutional validity of these two provisions is challenged by Mr.R.Viduthalai, learned Senior Counsel for the writ petitioner on three grounds. They are; (i) that by entrusting the power of superintendence over all wakfs, upon a Board constituted by the State Government, the right guaranteed by Article 30 of the Constitution to religious minorities to administer their own institutions stands infringed; (ii) that by conferring jurisdiction upon the Wakf Board even to set at naught a scheme framed by the Civil Court, the legislature has usurped the judicial powers and (iii) that even if the Explanation to Section 32(1) and Clause (g) of section 32(2) are to be saved, these provisions have read down. So as to save the scheme decrees, already passed by the Civil Courts and harmonizing the powers of the scheme Court with that of the Wakf Board. 23.In support of these contentions, Mr.R.Viduthalai, learned Senior Counsel for the writ petitioner also relies upon certain decisions of the Supreme Court. We shall now consider each one of the above contentions. Contention No.1 24.As we have stated earlier, the first contention of the learned Senior Counsel for the petitioner is that under Section 14 of the Wakf Act, 1995, the Wakf Board shall consist of (a) a Chairperson (b)one and not more than two members elected from each of the electoral colleges consisting of (i)Muslim Members of Parliament from the State, (ii)Muslim Members of State Legislature, (iii)Muslim Members of the Bar Council of the State and (iv)Mutawallis of Wakfs having an annual income of Rs.1 lakh and above c)One and not more than two members nominated by the State Government representing prominent Muslims Organisations, d)One and not more than two members to be nominated by the State Government from recognised scholars in an Islamic Theology and e)An Officer of the State Government not below the rank of Deputy Secretary. 25.Therefore, it is contended by Mr.R.Viduthalai, learned counsel for the writ petitioner that when the composition of the Board is in the hands of the State and when the Board comprises of the nominees of the State Government, the power conferred upon the Wakf Board to appoint Mutawallis and to have general superintendence over the wakfs would tantamount to the State exercising indirect control over wakfs. This according to the learned Senior Counsel for the petitioner would be an infringement of the fundamental right guaranteed by the Constitution to the minorities to administer their own institutions in a manner that they deem fit. 26.To buttress the above contention, the learned Senior Counsel for the writ petitioner relies upon the decisions of the Supreme Court in Bihar State Madarasa Education Board, Patna Vs. Madarasa Hanfia Arabic College, Jamalia and others, (1990) 1 SCC428and in Secy., Malankara Syrian Catholic College Vs. T.Jose, (2007) 1 SCC386 27.In Bihar State Madarasa Education Board, what was in issue was the correctness of the decision of the Board in dissolving the managing committee of a minority educational institution namely, Madarasa Shamsul Uloom College. The Bihar State Madarasa Education Board was conferred with the power under section 7(2)(n) of the Bihar State Madarasa Education Board Act, 1982 (Act 32 of 1982) to dissolve the managing committee of such an institution. In exercise of the said power, the Bihar State Madarasa Education Board dissolved the managing committee of the college. When the decision was challenged before the High Court, it was submitted that Section 7(2)(n) of the Act was violative of Article 30(1) of the Constitution. The High Court upheld the plea of the college and declared Section 7(2)(n) as unconstitutional. While upholding the decision of the High Court that Section 7(2)(n) of the Act was unconstitutional, the Supreme Court held as follows:- 6.The question which arises for consideration is whether Section 7(2)(n) which confers power on the Board to dissolve the managing committee of an aided and recognised Madarasa institution violates the minorities constitutional right to administer its educational institution according to their choice. This Court has all along held that though the minorities have right to establish and administer educational institution of their own choice but they have no right to maladminister and the State has power to regulate management and administration of such institutions in the interest of educational need and discipline of the institution. Such regulation may have indirect effect on the absolute right of minorities but that would not violate Art. 30(1) of the Constitution as it is the duty of the State to ensure efficiency in educational institutions. The State has, however, no power to completely take over the management of a minority institution. Under the guise of the regulating the educational standards to secure efficiency in institution, the State is not entitled to frame rules or regulations compelling the management to surrender right of administration. In State of Kerala v. Very Rev. Mother Provincial etc., [1971]. I SCR734 Section 63(1) of the Kerala University Act, 1969 which conferred power on the Government to take over the management of a minority institution on its default in carrying out the directions of the State Government was declared ultra vires on the ground that the provisions interfered with the constitutional right of a minority to administer its institution. Minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of management but at the same time their constitution- al right to administer their institutions cannot be completely taken away by superseding or dissolving managing committee or by appointing ad hoc committees in place there- of. In the instant case Section 7(2)(n) is clearly violative of constitutional fight of minorities under Article 30(1) of the Constitution in so far as it provides for dissolution of managing committee of a Madarasa. We agree with the view taken by the High Court. 28.In Secy., Malankara Syrian Catholic College Vs. T.Jose, (2007) 1 SCC386 the validity of Section 57(3) of the Kerala University Act, 1974, which prescribes seniority cum fitness alone as the criteria for promotion to the post of Principal in a college, was challenged as being violative of Article 30(1) of the Constitution insofar as its application to minority institutions is concerned. The Kerala High Court upheld the validity of Section 57(3). But the said decision was reversed by the Supreme Court. The first question that the Supreme Court took up for consideration was as to what extent the State can regulate the right of the minorities to administer their own educational institutions when such institutions receive aid from the State. The second question was as to whether the right to choose a Principal was part of the right of minorities under Article 30(1) and whether such a right could be trammelled by Section 57(3) of the Act. 29.While answering the question No.1 in paragraphs 13 to 21, the Supreme Court traced the issue starting from the decision of the Constitution Bench in the State of Kerala Vs.Very Rev.Mother Provincial, (1970) 2 SCC417and upto the decision in P.A.Inamdar Vs. State of Maharashtra, (2005) 6 SCC537 In paragraph 19, the Supreme Court summarised the general principles relating to the establishment and administration of the educational institutions by the minorities on the following lines. 19.The general principles relating to establishment and administration of educational institution by minorities may be summarized thus: (i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights : a) To choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution; b) To appoint teaching staff (Teachers/Lecturers and Head- masters/Principals) as also non-teaching staff; and to take action if there is dereliction of duty on the part of any of its employees; c) To admit eligible students of their choice and to set up a reasonable fee structure; d) To use its properties and assets for the benefit of the institution; (ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis- a`-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc. applicable to all, will equally apply to minority institutions also. (iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1). (iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/Lecturers by adopting any rational procedure of selection. Extension of aid by the State, does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1). 30.On the extent of regulation that is permissible, the Supreme Court said in paragraph 21 as follows:- 21.We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystalised in TMA Pai. The State can prescribe : (i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments, (ii) the service conditions of employees without interfering with the overall administrative control by the Management over the staff. (iii) a mechanism for re-dressal of the grievances of the employees. (iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions. In other words, all laws made by the State to regulate the administration of educational institutions, and grant of aid, will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the Management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions. 31.Therefore, in the light of the aforesaid decisions, it is contended by Mr.R.Viduthalai, learned Senior Counsel for the wirt petitioner that the Explanation to Section 32(1) as well as Section 32(2)(g) cannot stand the test of Article 30(1) of the Constitution. 32.But at the outset, we should point out that what we are concerned with in these cases is not about the right of the minorities to establish, manage and administer their own educational institutions. We are concerned in these cases, with the effective management and administration of wakfs. The mere fact that such wakfs may run educational institutions, would not make the cases on hand, comparable to cases of educational institutions run by minorities which came up before the Supreme Court in the aforesaid decisions. 33.The Wakf Act, 1995 itself has nothing to do with educational institutions run by Muslims. As seen from the preamble to the Act, it is an act intended to provide for the better administration of the Wakfs and for matters connected therewith or incidental thereto. The word Wakf itself is defined under Section 3(r) to mean the permanent dedication by a person professing Islam of any moveable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable. It includes a wakf by a user, grants as well as a wakf-alal-aulad. The statement of objects and reasons of the Wakf Act, 1995, shows that the attempts to revamp the working of the Wakf Act, 1954 in the year 1984 by way of an amendment, met with stiff resistance. Therefore, a complete overhaul was done and the 1995 Act was put in place, predominantly for i) the creation of Wakf Tribunals to consider the questions, disputes relating to wakfs and (ii) to provide for better administration and supervision of the wakfs. Therefore, the Wakf Act, 1995 is primarily an Act intended to improve the management and administration of trusts created by persons professing Islam for a purpose recognised by Muslim law as pious, religious or charitable. The main or one of the objects of such a trust or wakf could be the establishment of an educational institution. But the mere establishment of an educational institution will not make such a trust, anything other than a wakf within the meaning of the Act. 34.As a matter of fact, Mr.D.Nallathambi, learned Central Government Standing Counsel produced a copy of the introduction to the law of wakfs, containing the translated version of some portions of Holy Quran to drive home the point as to what a Wakf is. Incidentally we feel duty bound to place on record, our appreciation for the manner in which the learned Central Government Standing Counsel argued the case. 35.It is seen from the book produced by the learned counsel that Wakf is defined by the judicial committee of the Privy Council to mean tying up of property in the ownership of God Almighty and the devotion of the profits for the benefit of human beings. Though the term Wakf does not appear to be found in the Holy Book, there are some verses in the Quran where the concept of such endowments could be traced. Some of the important verses are extracted as follows: 2:177 It is not righteousness That Ye turn your faces Towards East or West But it is righteousness To believe in Allah And the Last Day And the Angels And the Book And the Messengers: To spend on your substance Out of love for Him For your kin For orphans For the needy For the wayfarer For those who ask And for the ransom of slaves: To be steadfast in prayer And give Zakat ........... 2:215 They ask Thee What they should spend (in charity) Say: Whatever wealth Ye spend that is good Is for parents, kindred And orphans And those in want And for wayfarers. And whatever Ye Do that is good Allah Knoweth it well. 4:36 Serve Allah and join not Any partners with Him And do good - To parents, kinfolk, Orphans those in need Neighbours who are kin Neighbours who are strangers, The companion by your side, The wayfarer (Ye meet) And what your right hand possess For Allah loveth not The arrogant, vainglorious 9:60 Alms are for the poor And the needy and those Employed too administer the (funds) For those whose hearts Have been (recently) reconciled (To truth): for those in bondage And in debt: in the cause Of Allah: and for the wayfarer; Thus it is ordained by Allah And Allah is full of knowledge And wisdom 51:19 And in their wealth there is due share For the beggar And the deprived 63:10 And spend something (in charity) Out of the substance Which We have bestowed On you, before Death Should come to any of you And he should say Oh My Lord! Why didst Thou not give me Respite for a little while?. I should then have given (largely) in charity and I Should have been one, Of the doers of good 64:16 So fear Allah As much as Ye can: Listen and obey: And spend in charity For the benefit of Your own souls And those saved from The covetousness of their own Souls they are the ones That achieve prosperity. 36.It is said that when Omer sought the advice of the Prophet for the pious use of a piece of land called, Sammagh in Khaibar, the Prophet said Tie up the property and devote the usufruct to human beings and it is not to be sold or made subject of gift or inheritance; devote its produce to your children, your kindred and the poor in the way of God. 37.Despite the fact that charity is hailed by every religion and despite the fact that Philanthropists throughout the world endow properties for the welfare of the poor and needy, it is common knowledge that such endowments many times fall into bad hands. Therefore, the law had to step in to ensure that the noble intentions of the founders of such endowments, are preserved intact for posterity. This is why Section 92 was inserted into the Code of Civil Procedure to enable a normal civil court to step in when public charitable trusts are maladministered and mismanaged by the trustees. 38.What sub sections (1) and (2) of Section 32 seek to do is just to incorporate the salient features of Section 92 of the Code of Civil Procedure into the Wakf Act 1995. If the Explanation to Section 32(1) and Clause (g) of Section 32(2) are considered to be an infringement of the right of minorities, Section 92 of the Code of Civil Procedure would as well suffer from the same vice. Section 92 (1) of the Code of Civil Procedure also confers general power of superintendence upon the Civil Courts over all public charitable trusts. The power under Section 92 includes the power to frame a scheme and to appoint trustees. Section 32 (2) (c), vesting the power to give directions for the administration of wakf is almost similar to Section 92 (1)(h). Section 32(2)(d) enabling the Wakf Board to settle scheme for the management of a wakf is similar to Section 92(1) (g) of Civil Procedure Code. Section 32(a)(c) is almost similar to Section 92(1)(e). 39.Therefore, what Sections 32(1) and 32(2) do is just to take away the power of the Civil Court and vest it with a Wakf Board so that persons who follow Islamic faith deal with such matters in a much better manner than the regular secular Civil Courts. Hence, the comparison drawn between cases involving educational institutions run by minority institutions and cases of general nature relating to the power of superintendence of Wakfs is not correct. 40.Interestingly, the contention based upon Article 30(1) loses sight of one important fact. What is challenged in this writ petition is not the entirety of Sub Sections (1) and (2) of Section 32; only two limbs of Section 32 are challenged. First is the explanation under sub section (1) and the second is Clause (g) of sub Section (2). But the general power of superintendence of all wakfs is vested under the main part of sub Section (1) of Section 32. The substantial portion of section 32 (1) is not challenged. In other words, the petitioner has no quarrel with the substantial part of Section 32(1) which confers, general power of superintendence upon a wakf board in relation to all wakfs in the State. The writ petitioner's objection is only with regard to such superintendence over wakfs in respect of which, schemes have been framed by a Civil Court. In other words, the petitioner's objection to the Constitutional validity is very hollow. The petitioner has no issue with the general power of superintendence conferred upon Wakf Board in relation to all other wakfs for which a scheme has not been framed by the Civil Court. We do not know how a violation of Article 30(1) would arise only in respect of those wakfs for which schemes have been framed by Civil Courts and not in respect of others. Therefore, the first contention of the petitioner is liable to be rejected. 41.As a matter of fact, Article 30 of the Constitution relates to the right of minorities to establish and administer educational institutions. It is only Article 26 to which the petitioner can trace his rights for challenging the Explanation under Section 32(1) and Clause (g) of 32(2). Article 26 guarantees four types of rights to every religious denomination, namely (i) to establish and maintain institutions for religious and charitable purposes; ii) to manage its own affairs in matters of religion; iii) to own and acquire immovable and movable property and iv) to administer such property in accordance with law. 42.If at all Section 32 (1) and (2) infringess any right, it is the right guaranteed under Article 26(d) at the most. Therefore, the petitioner cannot actually pitch his claim under Article 30 but can pitch his claim at the most only under Article 26 of the Constitution. But as pointed by a Constitution Bench of the Supreme Court in The Commissioner Hindu Religious and Endowments Vs. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt, AIR1954SC282 restrictions by the State upon the free exercise of religious beliefs and religious practices are permitted both under Article 25 as well as Article 26 on the grounds of public order, morality and health. But what can be restricted or regulated are only the economic, financial or political and other secular activities which may be associated with the religious practice. While the right guaranteed by Article 25 is an individual right, the right dealt with by Article 26 is that of an organised body like the religious denomination or any section thereof. 43.When a question arose about the compulsory acquisition by the Government of a place of worship, another Constitution Bench of the Supreme Court held in M.Ismali Faruqui (Dr) Vs. Union of India, 1994 6 SCC360that subject to the protection under Articles 25 and 26 even places of religious worship like mosques, churches, temples etc., can be acquired under the State's sovereign power of acquisition. Such acquisition was held by the Supreme Court to be not violative of Article 25 or 26. 44.In I. Nelson Vs. Kallayam Pastorate, (2006) 11 SCC624 a suit came to be filed against a Christian institution registered as a society under the name Indian Evangelical Lutheran Church alleging several irregularities and mismanagement under Section 92 of the Code of Civil Procedure on the file of the High Court. The High Court appointed an Advocate Commissioner to hold elections. But the elected office bearers could not take charge, in view of the non renewal of registration. When the matter was taken to the Supreme Court, one argument raised by the parties was that the appointment of administrator was beyond the jurisdiction of the High Court as the same infringed the fundamental rights guaranteed under Article 26 of the Constitution. While rejecting the said contention, the Supreme Court observed in paragraph 21 that the rights guaranteed under Articles 25 and 26 are not absolute and unfettered and that the right to manage does not carry with it a right to mismanage. 45.On the question as to when Article 26(d) could be said to be infringed, another Constitution Bench of the Supreme Court held in Ratilal Panchand Gandhi Vs. State of Bombay, AIR1954SC388that while the right of management given to a religious body in regard to the religious matters cannot be taken away by legislation, the right of such religious denomination to administer the property of the institution can always be regulated by law. With specific reference to Article 26(d), the Supreme Court observed as follows: ....the State can regulate the administration of trust properties by means of laws validly enacted; but Article 26(d), it is the religious denomination itself which has been given the right to administer its properties in accordance with any law which the State may validly impose. The Supreme Court further held that only a law which takes away the right of administration altogether from the religious denomination and vests it in any other secular authority can be taken to be violative of the right under Article 26(d). 46.In Tilkayat Shri Govindlalji Maharaj Vs.State of Rajasthan, AIR1963SC1638 the Constitution Bench of the Supreme Court very clearly explained that Article 26(d) emphatically brings out the competence of the legislature to make a law in regard to the administration of the property belonging to the denomination. The only safeguard pointed out by the Supreme Court was that the religious denomination's right must not be extinguished or altogether destroyed. 47.In Durgah Committee Vs. Syed Hussain Ali, AIR1961SC1402 a writ petition under Article 226 was filed by the Khadims of tomb of Khawaja Moin-ud-din Chishti of Ajmer, challenging the vires of Durgah Khawaja Saheb Act XXXVI of 1955. The Act was struck down by the Rajasthan High Court on the ground that several provisions of the Act violated several Articles of the Constitution including the Articles 19(1)(f), 26, 19(1)(g), 25(1), Article 14. Section 5 of the Act was struck down as violative of Article 26 on the short ground that it permitted Hanafi Muslims to be included in the Committee, without ensuring whether they are of Chishtia Order believing in the religious practices and rituals in vogue at the shrine. When the matter went to the Supreme Court, the Supreme Court traced the nature of the tenets and beliefs to which Sufism subscribes. This enquiry, according to the Supreme Court, became necessary to determine whether the Chishtia sect could be recorded as a religious denomination within Article 26 or not. After referring to the fact that the Sufies are divided into four main silsilas, one of them being Chishtias, the Supreme Court held that the challenge to Section 5 of the Act in terms of the Article 26 (1) 26(d) cannot stand. Consequently, the Supreme Court allowed the appeal and upheld the Act. 48.Therefore, it is clear that the case of the writ petitioner cannot be projected from the platform of Article 30 but can at the most be projected through the lens of Article 26(d). But the Supreme Court had recognised the power of the State to regulate such a right through law. Hence, the first contention is rejected. Contention No.2 49.The second contention of the writ petitioner is that even if the other limbs of Section 32(1) and (2) are taken to be valid, the Explanation to Section 32(1) which empowers the Tamil Nadu Wakf Board to set at naught a scheme framed by the Civil Court, cannot receive a seal of approval from this Court. By the Explanation to Section 32(1), the legislature has usurped the judicial powers. 50.In support of the above contentions, Mr.R.Viduthalai, learned Senior Counsel for the petitioner relies upon the following decisions: i) In Sri Radhakrishna Rice Mill Co., Vs.The Jumma Maseed, AIR2003Andhra Pradesh 70 and ii) In State of Tamil Nadu Vs.K.Shyam Sunder, (2011) 8 SCC73751.In Sri Radhakrishna Rice Mill Co., Vs.The Jumma Maseed, AIR2003Andhra Pradesh 70 one of the questions that came up for consideration before a Division bench of the Andhra Pradesh High Court was as to whether a scheme framed by the trial Court under Section 92 of the Code will continue to be in force even after the enactment of The Wakf Act 1954 and The Wakf Act, 1995. After referring to the Explanation inserted under Section 15(1) by way of The Wakf (Amendment) Act, 1984 to the Wakf Act, 1954 and also after referring to the Explanation under Section 32(1) under the 1995 Act, the Division Bench of the Andhra Pradesh High Court, held in paragraph 29 of the judgment that the schemes framed under Sections 92 and 93 of the Code of Civil Procedure are in no way affected on account of the enactment of 1954 Act. Paragraph 29 of the judgment of the Division Bench requires reproduction. Hence, it is reproduced as follows:- 29. There is another aspect of the matter touching on the issue. Even after the 1954 Act came to be enacted, Sections 92 and 93 of CPC continued to be available for the aggrieved persons to get Schemes framed in relation to religious institutions including wakfs. An attempt was made under Amendment Act 69 of 1984 to repeal Sections 92 and 93 of CPC by adding Item 3-A to Sub-section (1) of Section 69 of the 1954 Act. The date with reference from which that amendment was to come into force was not notified. The result is that Sections 92 and 93 continued to be applicable even in respect of wakfs covered by the provisions of the 1954 Act. The cumulative effect of these provisions is that the Schemes framed under Sections 92 and 93 of the CPC are in no way affected on account of enactment of 1954 Act. This discussion with reference to the provisions of 1954 Act is undertaken because applications were filed for appointment of Trustee/Mutawalli for the Mosque and the orders were passed when 1954 Act was in force. Even this doubt ceased to exist with the enactment of Wakf Act 1995 (for short '1995 Act'). Section 32 of 1995 Act correspondents to Section 15 of 1954 Act. Sub-section (1) of Section 32 of 1985 (sic 1995) Act reads as under:
32. Powers and Functions of the Board :-- (1) Subject to any rules that may be made under the Act, the general superintendence of all wakfs in a State shall vest in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the 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 power under this Act in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or customs 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 subsection, ".wakf includes a wakf in relation to which any scheme has been made by any Court of law, whether before or after the commencement of the Act.". A reading of explanation to Section 32 of 1955 Act would remove all the doubts as to whether the wakf in relation to which the Scheme has been made by the Court of law before or after the commencement of the Act in relation to that section. A seal of approval is accorded to the Scheme framed by a Court of Law in relation to wakfs whether before or after the commencement of the 1995 Act. One significant feature of this Act is that though separate machinery is provided for adjudication of disputes. Sections 92 and 93 of the CPC, for the repeal of which an abortive attempt was made in 1954 Act, are not repealed under this Act. Therefore, the Scheme framed in OS No.113/13 shall continue to be operative in respect of the Mosque. 52.But as could be seen from the facts out of which the decision of the Andhra Pradesh High Court arose, there was no challenge before the Andhra Pradesh High Court as to the constitutional validity of the Explanation to Section 32(1). The Andhra Pradesh High Court merely took the view that the Explanation to Section 32(1) did not take away the power under Section 92 of the Code of Civil Procedure. Therefore, the said decision is of no assistance to the petitioner, to seek a declaration that the Explanation to Section 32(1) is unconstitutional. 53.In State of Tamil Nadu Vs. State of Kerala, the Supreme Court pointed out in paragraph 151 of its decision, dated 07.05.2014 rendered in O.S.No.3 of 2006, (relating to Mullaiperiyar) that the question as to whether or not, the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle should be determined on the facts of each case, after considering the real effect of the law on a judgment or a judicial proceeding. One of the tests, according to the Supreme Court for determining whether a judgment is nullified, is to see whether the law and the judgment are inconsistent and irreconcilable to such an extent that both cannot stand together. 54.If the very same test is applied to the case on hand, it could be seen that there is no irreconcilability or inconsistency between a scheme framed by a Civil Court and a modification thereto by the Tamil Nadu Wakf Board. Just as a Court under Section 92 of the Code of Civil Procedure is obliged to ensure proper administration of a public charitable trust, mostly in tune with the wishes of the founder of the trust, the Tamil Nadu Wakf Board is also obliged, de hors the powers under Section 32(1), to ensure proper administration of wakfs in tune with the wishes of the founder. A Civil Court is nothing but a conscience keeper in ensuring the smooth administration of public charitable trusts. The Tamil Nadu Wakf Board has taken the very place. A mere change of forum for ensuring proper administration of public charitable trusts would not amount to usurpation of judicial powers by legislature. As a matter of fact, after independence, several tribunals and quasi judicial forums have been created, taking away the power exercised till then by normal Civil Courts. This has never been considered to be an usurpation of the powers of the judicial process. 55.In State of Tamil Nadu Vs.K.Shyam Sunder, (2011) 8 SCC737the question that came up for consideration before the Supreme Court was about the striking down of Section 3 of the Tamil Nadu Uniform System of School Education (Amendment) Act, 2011 by the High Court. It was contended before the Supreme Court that the 2011 Amendment Act had the effect of bringing back Section 14 of the 2010 Act which was earlier declared ultra vires by the High Court. It is in this context, that the Supreme Court examined in paragraphs 60 to 65, the question as to whether the legislature can overrule the judgment of the Court. In paragraphs 60 to 65, the Supreme Court summarized the law on the point to the effect that a judicial pronouncement of a competent court cannot be annulled by the legislature in exercise of powers for any reason whatsoever. The Supreme Court held that the legislature, in order to re-validate the law, can re-frame the conditions existing prior to the judgment, on the basis of which certain statutory provisions had been declared ultra vires of the Constitution. There can no quarrel about the above proposition. But unfortunately, what the Explanation to Section 32(1) did, was not to annul the effect any judgment of any Court about another law. The Explanation to Section 32(1) merely replaces the forum for supervisory control over the wakfs, from that of Civil Court to the Wakf Board. No court ever declared at any point of time, that a Wakf Board like the Hindu Charitable and Endowments Board cannot have any power of superintendence over wakfs. Only if a Court had earlier come to the conclusion that the Wakf Board cannot have general power of superintendence over wakfs and only if the Explanation to Section 32(1) had been inserted to annul the effect such a judgment, can it be said that there is usurpation of the judicial powers by the legislature. Therefore, the second contention also does not merit acceptance. 56.As a matter of fact, an identical contention, but with regard to the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 came up for consideration before the Supreme Court in T.Lakhmikumara Thathachariar Vs.Commissioner, HR & CE (1998) 6 SCC643 That case related to a scheme framed by a Civil Court in relation to a very famous temple known as Devarajaswamy Temple at Kancheepuram. A scheme for the administration of the temple had been framed by the Civil Court under Section 92. When the Deputy Commissioner of Hindu Religious and Charitable Endowments, initiated proceedings in the year 1982, under Section 64(5) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, for the modification of the scheme which was settled earlier by the Madras High Court itself, the same came to be challenged. When the case eventually landed up in the Supreme Court one contention raised was as to whether a statutory authority can annul or modify the effect of a scheme decree passed by the Civil Court. The said contention was rejected by the Supreme Court in paragraph 16 on the following lines: 16.It is next contended that the provisions of Section 64(5) are an attempt by the legislature to nullify orders of the court in the form of schemes framed by the Court under earlier legislations and, therefore, Section 64(5) must be considered as unconstitutional being an attempt to set aside or modify a decree of the court. The High Court has rightly held that this is not a case of passing a legislation in order to nullify the interpretation of law given in the judgment of a court of law. The schemes which were framed by the courts under earlier legislation were schemes which were capable of modification or cancellation in accordance with law even under the legislation under which such schemes were framed. While repealing the earlier legislation when the new legislation came into force, the power to modify and cancel such schemes was expressly transferred under the new legislation to the authorities specified therein. Under the present legislation of 1959, the authority which has the power so to modify the scheme is the Deputy Commissioner or Joint Commissioner. We do not see any attempt to set aside any decree of the Court by legislation in the present case. 57.Though the above case arose in relation to the Hindu Religious and Charitable Endowments which had nothing to do with the rights of minorities, the logic behind the reasoning given by the Supreme Court, with regard to the second contention of the petitioner, would apply in all force. Therefore, we reject the second contention. Contention No.3 58.The third contention of the petitioner is that even if the Explanation to Section 32(1) is to be held valid, the provision has to be read down, in such a manner as to save scheme decrees that have earlier been passed by the Civil Courts. In other words, the contention of the learned Senior Counsel for the petitioner is that by interpreting the impugned provisions of the Act in such a manner that it would apply only to wakfs in respect of which no civil court has so far passed any decree, the conflict can be resolved and the powers of the Civil Courts under Section 92 of the powers of the Wakf Board could be harmonized. 59.The above argument loses sight of one important aspect. Section 83 of the Wakf Act, provides for constitution of the Wakfs Tribunals. The object of the constitution of the Tribunal is the determination of any dispute, question or other matter relating to a wakf or wakfs property. This is clear from Section 83(1) of the Act. Section 83(1) reads follows: 83.Constitution of Tribunal etc., (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals. 60.Under Sub Section (4) of Section 83 every Wakf Tribunal shall consist of one person who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge. The appointment of every such person may be either by name or by designation. Under sub section (5) of Section 83, the Tribunal is deemed to be a Civil Court and it shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, while trying a suit or executing a decree or order. Sub Section (7) of Section 83 declares every decision of the Tribunal to have the force of a decree made by a Civil Court. 61.Section 85 bars the jurisdiction of the Civil Courts and it reads as follows: 85.Bar of jurisdiction of Civil Courts:- No suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal. 62.A careful consideration of the scheme of Sections 83, 84 and 86 would show (i) that a Wakf Tribunal virtually replaces the Civil Court for all purposes and (ii) that in view of the same, there is a bar of jurisdiction of Civil Courts. 63.Any order passed under Section 32(1) and (2) can even be challenged before the Wakf Tribunal in a suit under sub section (3) of Section 32. Sub-Section (3) of Section 32 reads as follows: 32(3)Where the Board has settled any scheme of management under clause (d) or given any direction under clause (e) of sub-section (2), any person interested in the wakf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and the decision of the Tribunal thereon shall be final. 64.Therefore, despite the fact that the Wakf Board is conferred under the Explanation to Section 32 (1) and under clause (g) of Section 32(2) to modify a scheme already framed by the Civil Court, any such modification made by the Wakf Board is again made subject to an appeal before the Wakf Tribunal under Section 32(3). This Wakf Tribunal is deemed to be a Civil Court under Section 83(5). Therefore, these impugned provisions have only incorporated one more tier of re-dressal rather than usurping the jurisdiction of the Civil Court. Hence, it is not possible to accept the third contention that the Explanation to Section 32(1) has to be read down. 65.Moreover, the apprehension of the petitioner about the State interference, of the rights of the minorities to administer their own institutions, is completely unfounded for many reasons. If we look at the composition of the Tamil Nadu Wakf Board under Section 14 of the Act, it is supposed to comprise of four categories of members:- (a) a Chairperson (b)one and not more than two members elected from each of the electoral colleges consisting of (i)Muslim Members of Parliament from the State, (ii)Muslim Members of State Legislature, (iii)Muslim Members of the Bar Council of the State and (iv)Mutawallis of Wakfs having an annual income of Rs.1 lakh and above c)One and not more than two members nominated by the State Government nominating eminent Muslims Organisations, d)One and not more than two members to be nominated by the Government from recognised scholars in an Islamic Theology and e)An Officer of the State Government not below the rank of Deputy Secretary. 66.Therefore, it is clear that a majority of the members are elected from among the electoral colleges which themselves comprise of the representatives of the community. 67.As a matter of fact, the Explanation under Section 32(1) is not a new innovation. It is nothing but a reproduction of the Explanation to Section 15(1) inserted under the Wakf (Amendment) Act 1984. But the provisions of the Wakf (Amendment) Act, 1984 could not be enforced, on account of very strong opposition. One of the opposition to the amendments proposed under the 1984 Act was that the Wakf Board itself was made subordinate to the Wakf Commissioner who was conferred with overriding powers. Therefore, a complete overhauling of the Act was made under the Wakf Act, 1995. 68.The Wakf Board is also supposed, while exercising powers under Section 32 to act only in tune with the wishes of the founders of the trust. If the Wakf Board fails to do so, the same can always be corrected by the Wakf Tribunal in an appeal filed against the orders of the Wakf Board. Therefore, the apprehension of the petitioner about State interference is completely unfounded. Hence, all the contentions, challenging the vires of the two provisions of the Act, are bound to be rejected. Accordingly, they are rejected. Consequently, the Writ Petition is dismissed as devoid of merits. Civil Revision Petitions:- 69.Coming to the Civil Revision Petitions, as we have pointed out earlier, all the Civil Revision Petitions challenge the order of the Principal District Judge, Thanjavur appointing a set of hereditary trustees and non hereditary trustees to the Wakf in question. The challenge to the order of the trial Court is primarily on the ground that in the light of the Section 32(1) and 32(2), the jurisdiction to modify a scheme framed by the Civil Court now vests only with the Wakf Board and that therefore, the order of the scheme court is liable to be set aside. 70.This Court, as we have pointed out elsewhere, has taken the consistent view that the Civil Court has lost its jurisdiction by virtue of the provisions of the Act. The decisions of this Court where such a view is taken, are:- 1)Syed Thajuddin Vs. Syed Mohideen and Others reported in (2011) 2 MLJ105 2)A.K.Khalifulla and Others Vs. S.A.Gulam Rasool and another reported in (2007) 6 MLJ4323)Mohamed Mujeebur Rahman Vs. The State of Tamil Nadu and others reported in 2011 Writ L.R.1008 4)Judgment in C.R.P.NPD.Nos.1816 & 2164 of 2012, dated 25.07.2012. 71.In the light of the above decisions, all the Civil Revision Petitions except Civil Revision Petition (MD) (PD)No.2666 of 2012, challenging the order of the Principal District Judge are bound to be allowed. Accordingly, they are allowed and the order of the Principal District Judge, dated 21.09.2012 is set aside. Insofar as Civil Revision Petition (MD)(PD)No.2666 of 2012 is concerned, the challenge did not survive even at the time when the Civil Revision Petition was filed. As pointed out earlier, this Civil Revision Petition (MD)(PD)No.2666 of 2012 was filed against the order dated 31.03.2008. But that order was already superseded by the subsequent order of the Scheme Court dated 21.09.2012. By the order dated 21.09.2012, the earlier order dated 31.03.2008 became inoperative. Therefore, the Civil Revision Petition (MD)(PD)No.2666 of 2012, alone is dismissed on the ground of the same having become infructuous by the order dated 21.09.2012. 72.By merely allowing the Civil Revision Petitions and setting at naught the order dated 21.09.2012 of the Principal District Judge, the problem may not get resolved. If the order dated 21.09.2012 of the Principal District Judge is invalid on account of the Civil Court having lost its jurisdiction, the previous orders passed by the very same District Judge, after the 1995 Act came into force are also equally invalid. Therefore, by setting aside the order dated 21.09.2012, passed by the Principal District Judge, we cannot allow the restoration of the previous order of the Principal District Judge. 73.Therefore, while allowing the Civil Revision Petitions, we direct the Tamil Nadu Wakf Board to appoint trustees to the trust in question, strictly in accordance with the directives, contained in the deeds of trust and also keeping in mind the manner in which the Civil Court had handled the question of appointments in the past. The Wakf Board shall complete the exercise and appoint trustees after giving opportunities to all parties concerned within a period of three months from the date of receipt of a copy of this order. Till then, the interim arrangement ordered by this Court on 25.02.2013, shall continue to be in force. No costs. Consequently, connected miscellaneous petitions are closed. To 1.The Secretary to Government, Union of India, Ministry of Law & Justice, 4th Floor, A Wing, New Delhi. 2.The Secretary to Government, Government of Tamil Nadu, Backward Classes and Most Backward Classes, Minority Welfare Department, Fort St., George, Chennai 600 009. 3.The Tamil Nadu Wakf Board, Rep by its Chairman, No.1 Jaffer Sirong Street, Vallal Seethakathi Nagar, Chennai 600 001. 4.The Principal District Judge, Thanjavur.