Madras HC Full Bench: Waqf Board Cannot Appoint Mutawallis Under Section 32 Where a Court Scheme Decree Exists; State Government Is the Authority Under Section 66
A Madras High Court Full Bench has held that where a waqf is governed by a subsisting judicial scheme decree, the Tamil Nadu Waqf Board has no jurisdiction under Section 32 of the Waqf Act, 1995 to appoint Mutawallis; that power vests exclusively in the State Government under Section 66, exercisable only after consultation with the Board.
A three-judge Full Bench of the Madras High Court, comprising Justice N. Sathish Kumar, Justice R. Vijayakumar and Justice L. Victoria Gowri, has authoritatively resolved a long-running conflict among the court's own Division Bench precedents on the respective powers of the Tamil Nadu Waqf Board and the State Government over waqfs administered under judicial scheme decrees. The judgment, delivered on 31 July 2026 and authored by Justice L. Victoria Gowri, holds that Sections 32 and 66 of the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995 occupy distinct and complementary legislative fields. Where a deed of waqf, court decree, court order or scheme of management vests the power of appointment of Mutawallis in a court or any authority other than the Board, Section 66 operates and the appointing authority is the State Government — not the Board. The Board's general superintendence under Section 32 continues, but does not extend to directly exercising powers that Parliament has expressly assigned to the State Government under Section 66.
The Dispute: Trustee Appointments to a Tiruchirappalli Dargah Waqf
The proceedings originated in W.P.(MD) No.24333 of 2025, a writ petition filed by J. Ilayas and A. Mohamed Ghouse challenging an order of the Chief Executive Officer of the Tamil Nadu Waqf Board bearing proceedings No. Se.Mu. 7046/93/A5/Trichy dated 25 June 2025. That order appointed three General Trustees to the Hazrath Tableh Alam Bahadur Shah Nathar Wali Dargah Waqf, Tiruchirappalli, for a three-year term commencing 25 June 2025.
The petitioners' primary objection was jurisdictional. The waqf is an ancient notified institution comprising a Dargah, a public mosque and a burial ground. Following earlier allegations of maladministration, the Subordinate Judge, Tiruchirappalli framed a comprehensive Scheme Decree in O.S. No. 91 of 1925, passed on 29 January 1930. The Scheme provides for a board of five trustees: one from the Pangalis, one from the hereditary line, and three appointed from amongst prominent Muslims of Tiruchirappalli by the Scheme Court. The petitioners assert that this Scheme Decree has never been modified, superseded or set aside by any competent court or statutory authority.
After the earlier board of trustees' term expired, the Tamil Nadu Waqf Board issued a notification on 22 May 2025 inviting applications. Thirty-five applications were received. On 25 June 2025, the Board held an enquiry, resolved to appoint respondents 4 to 6 as General Trustees, and issued the consequential proceedings under Section 32(2)(g) of the Act. Curiously, the impugned order simultaneously recorded that the appointments were being made “in accordance with the Scheme Decree passed in O.S. No. 91 of 1925” while invoking Section 32(2)(g) as the source of power — a tension that lay at the core of the controversy.
Why a Full Bench Was Constituted
When the writ petition came before the Hon'ble Single Judge (Justice G.R. Swaminathan), learned counsel on both sides placed before him two irreconcilable streams of Division Bench authority. One line held that upon constitution of the Waqf Board, all powers previously exercised by the Scheme Court vest in the Board by virtue of Section 32. The other line held that Section 66 creates a distinct statutory exception, transferring those specified powers to the State Government after consultation with the Board.
Finding an apparent conflict among binding precedents on a question affecting the administration of numerous waqfs throughout Tamil Nadu, the Single Judge referred the matter to a Larger Bench. The Chief Justice constituted the present Full Bench. The referred question was framed thus: whether the Tamil Nadu Waqf Board has jurisdiction under Section 32 to appoint Mutawallis for waqfs to which Section 66 applies.
Two writ appeals — W.A.(MD) Nos. 3073 and 3110 of 2025, arising from an interim order dated 10 September 2025 passed in the writ petition — were heard alongside.
The Statutory Provisions in Conflict
Section 32(1) vests in the Waqf Board the general superintendence of all waqfs in the State, with a duty to ensure proper maintenance, control, administration and application of income. Section 32(2) enumerates functions including settlement of schemes and, under clause (g), the appointment and removal of Mutawallis. An Explanation to Section 32(1) expressly states that “waqf” includes a waqf in relation to which any scheme has been made by any court of law, whether before or after commencement of the Act.
Section 66 provides that wherever a deed of waqf, decree or order of a court, or scheme of management provides that a court or any authority other than the Board may appoint or remove a Mutawalli, settle or modify such a scheme, or otherwise exercise superintendence over the waqf, then — notwithstanding anything in such deed, decree, order or scheme — those powers shall be exercisable by the State Government. A proviso to Section 66 requires the State Government to consult the Board before exercising such powers.
The Board and respondents-trustees contended that Section 32, read with its Explanation, completely transferred the Scheme Court's jurisdiction to the Board, and that Section 66 was meant only as a transitional or residual provision applicable in exceptional cases. The petitioners contended the reverse: Section 66 is a special provision containing a non obstante clause and expressly designating the State Government, and it cannot be overridden by Section 32's general language.
How the Full Bench Reasoned
Justice Victoria Gowri, writing for the Full Bench, began by rejecting the premise common to both sides — that one provision must be read as exhaustively occupying the field to the exclusion of the other. The judgment holds that Section 32 is institutional in character, establishing the Board's continuing regulatory jurisdiction over all waqfs. Section 66, by contrast, is situational in character, attracting itself only when the factual conditions Parliament has specified exist. The provisions address different normative questions and must be read together as complementary components of a single statutory design.
The court held that the Explanation to Section 32(1) performs a clarificatory function: it places beyond doubt that scheme-governed waqfs fall within the Board's supervisory jurisdiction. It does not, however, transfer to the Board every specific power that earlier resided in the Scheme Court. The Explanation enlarges the descriptive scope of “waqf” under Section 32; it does not enlarge the Board's substantive powers so as to displace the authority expressly designated by Section 66.
On the non obstante clause in Section 66, the bench applied the principle from R.S. Raghunath v. State of Karnataka and Union of India v. G.M. Kokil that such a clause operates only within the legislative field assigned to the provision and does not authorise disregarding the rest of the statute. Since Section 66 contains its own non obstante clause directed at pre-existing deeds, decrees, orders and schemes, it overrides those instruments and prescribes the State Government as the statutory successor to the specified powers.
The bench also rejected the argument that the word “or” in the phrase “Board established or the State” in Section 32(1) was a typographic error for “for”. The court held that a deviation in legislative language from a prior enactment is presumed to be intentional, and courts cannot rewrite enacted text on the assumption that Parliament merely intended to reproduce its predecessor statute. Significantly, the presence of the expression “or the State” was found to contextually reinforce the Act's dual institutional framework: the Board's general superintendence under Section 32 coexists with the State Government's limited but specific authority under Section 66.
Treatment of the Precedents
The Full Bench undertook a detailed chronological analysis of the precedents from 1975 to 2025. The 1975 Single Judge decision in Palani Muslim Dharmaparipalana Sangam v. Tamil Nadu Wakf Board and the 1996 Division Bench decision in Executive Committee of Masjid-E-Farkhunda v. P.A.G. Hussain Moulana were affirmed: a subsisting judicial Scheme Decree does not cease to operate merely because of the Act, and the Board's power of general superintendence does not authorise it to disregard or supersede a valid scheme. These decisions were held to continue as good law within the ratio actually decided.
The 2014 Division Bench decision in K.S. Sharfudeen v. Union of India was read narrowly: it decided only the constitutional validity of the Explanation to Section 32(1) and did not undertake an examination of Section 66 or reconcile it with the Explanation. Its authority was confined to the questions actually decided.
The judgment's most significant treatment is of the 2024 Single Judge decision in B.T. Noordeen v. The Managing Trustee. That judgment had adopted what the Full Bench calls the “conscious choice” test: Section 66 would apply only where the relevant deed, decree or scheme was framed at a time when the Waqf Board was already in existence and the maker consciously excluded the Board. Since the Nagore Dargah Scheme was framed in 1955 before the Board's constitution, B.T. Noordeen held Section 66 inapplicable.
The Full Bench declined to accept this test. Section 66's language is objective: it asks whether the instrument, as a matter of legal effect, vests a specified power in a court or an authority other than the Board. It imposes no temporal or subjective qualification. Parliament could readily have introduced such a requirement but did not. Importing a “conscious exclusion” requirement would narrow Section 66 to near-irrelevance, precisely excluding the historical deeds, decrees and schemes that most needed statutory accommodation after the 1995 Act. B.T. Noordeen was clarified to this limited extent; its actual conclusion on the facts of the Nagore Dargah controversy was not disturbed.
The bench also examined the 2023 Single Judge decision in B. Abdul Kadar v. Tamil Nadu Waqf Board (since reversed on appeal), the Division Bench in I.S. Ibrahim v. Principal Secretary to Government, and the Single Judge decision in Syed Maskoor Mohideen v. Tamil Nadu Waqf Board. These were reconciled within their respective ratios. In particular, the court agreed with Syed Maskoor Mohideen's observation that the earlier Division Bench decisions had not directly examined the specific language of Section 66.
The Governing Principles Declared
The Full Bench formulated twenty-eight governing principles, of which the following are the most material to the reference:
Section 32 is the general provision establishing the Board's supervisory jurisdiction over all waqfs, including scheme-governed waqfs. Section 66 is an independent special provision confined to the specific powers — appointment, removal, modification of scheme, and superintendence — where those powers are vested by a deed, decree, order or scheme in a court or authority other than the Board. The two provisions operate in distinct but complementary spheres.
Judicial Scheme Decrees survive the coming into force of the Act and remain binding until lawfully modified, superseded or brought to an end. Their continued existence is, however, legally distinct from the question of which authority may exercise particular statutory powers after the Act. The Act effects legislative integration rather than obliteration of pre-existing schemes.
Section 66 adopts an objective test: the operative question is whether the instrument in fact vests one of the specified powers in a court or non-Board authority. Proof of a conscious intention to exclude the Board is not required. Section 66 is essentially transitional and substitutive, enacted to address the class of historical deeds, decrees and schemes that preceded the modern statutory regime.
Neither Section 32 nor Section 66 renders the other redundant. An interpretation that absorbs Section 66 entirely into Section 32 would violate the settled principle that every provision enacted by Parliament must be given meaningful effect (ut res magis valeat quam pereat).
Order
The Full Bench answered the reference in the following terms, which constitute the ratio decidendi binding on all co-equal and lesser benches:
“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.”
Justice R. Vijayakumar concurred, adding that where a waqf deed, court order or decree, or scheme of management expressly excludes the Board from exercising its powers, the Board cannot invoke Section 32 to appoint Mutawallis. In those cases, only the State Government can exercise the said power under Section 66, subject to the conditions prescribed therein. Sections 32 and 66 accordingly operate in mutually exclusive spheres, and no repugnancy arises between them.
The Registry was directed to place W.P.(MD) No.24333 of 2025 before the Single Judge having roster for disposal on merits in the light of the principles declared by the Full Bench.