K.P. Zainulabdeen and others vs Tamil Nadu Wakf Board, Madras and others

The above Writ Petition has been filed for the issue of a Writ of Certiorari to call for and quash the orders of the first respondent in W.A. No.

10/B. 7/72/Try dated 23-12-1982.

Philanthropist by name Janab Khader Mohideen alies Chinnatha Rowther of Aravakurichi, Karur Taluk, Trichy District said to have created a

wakf deed dated 5-9-1919 dedicating certain properties and cash of Rs. 1,500/- for the following objects: --

(1) To run the Madrasa, Madrasathul Muhammedia established by the founder of the Wakf in 1903.

(2) To provide books 10 the poor students of the said Madrasa.

(3) To provide for the funeral expenses of the poor.

(4) To provide for the expenses of Haj Pilgrims.

(5) To provide for the marriage expenses of poor girls.

(6) To provide for the Ramzan Musafirs.

(7) To provide for recitation of moulood and for feeding miskeens (poor) during the Muharram, Rabiul Avval, Rabiul Akir, Jamathul Akhir and

Rajab months.

According to the wakf deed, it appears that the founder appointed himself as the first Muthavalli of the wakf till his lifetime and further provided

that thereafter his eldest son should be the Executive Muthavalli and the other sons were to function as ordinary Muthavalllis. After the lifetime of

the sons, the eldest grand-son or sons through each of their family should be the Mouthavallis and if any of them alienated or attempted to alienate

the properties given under the wakf or mismanaged the wakf, they should be removed from the management of the wakf. Admittedly, the original

wakif, died in the year 1939 and his eldest son died in 1960. The other sons are said to have pre-deceased the eldest son. According to the

petitioners, after the death of the eldest son, the petitioners and 5 other grand-sons were in joint management and have been performing the

charities and carrying out the mandates of the wakf without room for any complaint. Whileso, respondents 2 to 5 have filed Application No.W.A.

10/B.7/72/Try, before the Board bringing it to the notice of the Board that none of the objects of the wakf were carried out by the respondents to

the said application, that the original founder and his sons alone performed the charities, that thereafter, the grandsons of the founder stopped

performing the charities and divided the income of the property among themselves, that there was an attempt on their part to sell also some of the

wakf properties, and that the building where the Madarsa was originally conducted has been allowed to become dilapidated and the same was not

being used as Madarasa. It was also stated in the said application that the property given under the wakf be worth more than Rs. 21/2 lakhs with

an annual income of more than Rs. 10,000/- and that the respondents before the wakf board neither had the wakf regfistered nor submitted any

accounts or paid any contribution to the Board. Consequently, it was prayed that the respondents before the Board be removed from the

management, a scheme be framed, the respondents before the Board be directed to furnish accounts and that the management of the wakf be

taken over under the control of the Tamil Nadu Wakf Board and a Committee constituted for the management of the wakf.

The respondents before the Board filed a counter affidavit, while admitting the objects of the wakf as well as the rule of succession referred to

by the petitioners before the Board, it was contended that the cash of Rs 1,500/ - was never handed over to the successors by the wakif on his

demise in the year 1939, that the charities were being performed till 1950 by the sons of the wakif, that even during the lifetime of the founder,

there was dearth of pupils and the Madarsa was abandoned and not run and the same was never in existence for more than 50 years, it was also

contended that there were a number of Madarasas in Aravakurichi and the starting of another one was found to be superfluous and the building

now is being used as Musafarkhana for the past many decades, that all the objects of the wakf mentioned in the wakf deed have been performed

regularly, even though the cost of performing these is many times more than the original estimate of the wakif, that the income from the property

was meagre, and the expenses were almost met from the personal funds of the respondents before the Board and, therefore, no accounts were

kept till 1972. It was also claimed that the proceedings before the Board had been set in motion due to personal ill-will between a group of

persons who became Trustees of the Jumma Mosque and that there was actually no mismanagement of the wakf warranting the framing of any

scheme. A reply affidavit appears to have been filed by one Janab P. V. Shahul Hamid before the Board reiterating the averments in the main

petition and denying the various claims made by the respondents before the Board both in respect of the income received from the properties as

well as the alleged performance of the charities.

The Wakf Board appears to have referred the matter for enquiry by the enquiry committee, Trichy and it appears that the enquiry committee

found that the present Muthavallis (grand-sons) had not made any arrangements to run the Madarasa, that they failed to provide books for poor

and also failed to perform other pious and charitable acts mentioned in the wakf deed in spite of the fact that the wakf have been getting an annual

income of Rs. 15,000/-. The Enquiry Committee appears to have taken into account and placed reliance on the deposition of one of the

respondents before the Board regarding the commission of innumerable irregularities by the Muthavallis and acceptance expressed to the Enquiry

Committee of its suggestion for the appoitment of an Executive Officer for better administration and management of the wakf. The Enquiry

Committee appears to have recommended the removal of the incumbents in office from Muthavalliship and the appointment of an Executive Officer

to take charge of the administration and constitution of an Advisory Committee to assist the Executive Officer. Thereupon, the matter appears to

have been set down for further hearing before the Board and it appears that the parties and advocates representing them were heard by the wakf

board. After considering the materials available before the Board, the impugned Order came to be passed under which it was ordered that the

existing Muthavallis be removed and the wakf be taken over by the Board under its direct management for a period of one year by appointing the

Wakf Inspector, Trichy as its Executive Officer from the date of his taking charge for the better management of the wakf and the Muthavallis

ordered to be removed were directed to hand over charge together with the properties account books etc., to the Wakf Inspector. Aggrieved, the

above Writ Petition has been filed by three of the Muthavallis who were in Office and who were ordered to be removed.

The petitioners have not chosen to file the statutory appeals provided for under S.43(4-A) of the Wakf Act to the State Government.

Before proceeding further with the consideration of the submissions made on behalf of the respective parties, it will be appropriate to refer to the

reasons for the statement in taking further effective action. The writ petitioners appear to have challenged the action initiated on the ground of locus

standi of the petitioners before the Board contending that the application before the Board was not from persons interested and, therefore, was not

maintainable. In a decision in K. P. Jainullabudeen v. Tamil Nadu Wakf Board. (1976) 89 MLW 672, Ramanujam, J., allowed the Writ Petition

holding that an applicant before the Wakf Board alleging mismanagement in the affairs of the Wakf should be a person interested and the

applicants in the case on hand before the Board were not such persons interested and consequently, the application was not maintainable. On

further appeal from the above decision, a Division Bench of this Court in K. Jainulabudeen v. K. P. Jainulaiuddeen, (1981) I MLJ 332 reversed

the order of the learned single Judge and the Division Bench held that having regard to the objects and the terms of the Wakf in question, the

petitioners before the Board are persons interested in the Wakf, and therefore, they are entitled to invoke the jurisdiction of the wakf board u/s 44

of the Act. A Petition filed for leave to appeal to the Supreme Court against the judgment of the Division Bench in S.C.P. No. 6 of 1982 was also

rejected on 16-3-1982 vt a Division Bench of this Court. It is only thereafter further proceedings have been pursued culminating in the passing of

the impugned order. The first respondent has filed a separate counter and the fourth respondent has also filed a counter afidavit. In the said

counter-affidavits, the various allegations made by the petitioners in the affidavit filed in support of the writ petition were traversed in detail.

P. K. Jamal Mohamed, learned counsel appearing for the petitioners, contended that there is no provision in the Wakf Act for the appointment

of an Enquiry Committee, that there is no indication as to how and when the Enquiry Committee, Trichy was constituted, that no notice of

examination of any witnesses was given or that any opportunity for cross-examination was granted and that the Board which alone is entitled to

decide the matter has not conducted any enquiry, that the persons for the time being in office were not specifically held to be guilty of any

defalcations and unless individual responsibility is fixed, the question of taking action against the existing body of Muthavallis did not arise. It was

also contended that the mere non-production of documents is not a ground for removal. The learned counsel relied upon the decisions in Khadar

Shariff and Others Vs. Tamil Nadu State Wakf Board and Others, ; T.E. Mohammed Shareef Vs. The Superintendent (Wakfs), Central Zone and

Others, , and Adhiyaman Educational and Research Institutions Vs. The State of Tamil Nadu and others, , in support of the various submissions

made.

Mr. S. Gopalratnam, learned Senior Counsel appearing for the 4th respondent, contended that having regard to S.45(1)(b) of the Wakf Act,

the Board has power to constitute an Enquiry Committee and that no exception could be taken to the procedure adopted by the Board in the

present case. The learned counsel also contended that the impugned order contains overwhelming materials to justify the removal of the incumbents

in office of the Muthavallis and the order for taking over of the management for one year to ensure better management of the Wakf cannot be said

to be either harsh or unwarranted or illegal. The learned counsel further contended that at every stage some obstruction or other was being caused

by the incumbents in office to some how delay matters with selfish ends and objects, and that there are absolutely no merits in the above Writ

Petition. The learned counsel appearing for the first respondent while adopting the submissions of the learned counsel for the fourth respondent

countered the various factual claims made by the writ petitioner both with reference to the materials contained in the impugned order as well as the

records of the Board relating to the matter. The learned counsel contended that the judgments relied upon by the petitioners have no real relevance

or application to the case on hand and contended that the Board had acted in the best interests of the Wakf in order to set right the administration

and to effectively carry out the objects of the Wakf. Therefore, it was contended that no interference is called for with the impugned proceedings.

I have carefully considered the respective submissions of the learned counsel appearing on either side. Section 44 of the Act provides that any

person interested in a Wakf may made an application to the Board in the manner provided therein to institute an inquiry relating to the

administration of the wakf and if the Board is satisfied that there are reasonable grounds to believe that the affairs of the wakf are being

mismanaged, the Board shall take such action thereon as it thinks fit. So far as the case on hand is concerned, as referred to already, a Division

Bench of this Court has held the application presented in this case to be maintainable at the instance of the petitioners before the Board. Section 45

of the Act provides that the Board may, either on an application received under S. 44 or on its own motion--

(a) hold an inquiry in such manner as may be prescribed; or

(b) authorise any person in this behalf to hold an inquiry, into any matter relating to wakf and take such action as it thinks fit.

Section 43 provides that notwithstanding anything contained in any other law or the deed of wakf, the Board may remove a Muthawalli from his

office if such muthawalli has been guilty of the various acts referred to therein. Sub-section (4) of Section 43 provides that no action shall be taken

by the Board under sub-section (1) or sub-section (2), unless it has held an inquiry into the matter in the prescribed manner and the decision has

been taken by the majority of not less than three-fourths of the Board. Relying upon the decision of the Division Bench of this Court reported in

Khadar Shariff and Others Vs. Tamil Nadu State Wakf Board and Others, it was contended by the learned counsel for the petitioner that the

Board has no implied powers to appoint a committee and that so far as the case on hand is concerned, it is the Board which could have dealt with

the application under S.44 and the power of conducting an inquiry cannot be entrusted to an Enquiry Committee. I am unable to countenance this

stand of the petitioner. The Committee that was under the consideration of the Court in the decision relied upon was the one for the management of

the wakf and particularly in a situation when an Muthavalli was in charge of the management and administration of the wakf. The observations of

the Division Bench cannot be quoted out of context for the purposes of substantiating the stand of the writ petitioner in the present case where the

challenge is to the power and authority of the Board to appoint a Committee to conduct an enquiry into the management or administration of the

wakf. That, in my view, is specifically provided for under S. 45(1)(b) of the Act and there is no scope or room for invoking the principles of

implied powers in the teeth of a specific provision which entitles the Board to authorise any person to hold an inquiry. The further plea that the

provisions of Section 43(4) is a special provision and that S.45(1)(b) is a general provision has no substance. Section 43(4) only postulates the

conduct of the enquiry as a condition precedent before the ordering of removal of a Muthavalli. Whenever the Board is obliged to conduct an

inquiry, it is open to the Board having regard to the provisions contained in S. 45 of the Act to hold such inquiry into either itself or by authorising

somebody to hold such an inquiry. In my view, even dehors a provision contained in S. 45(1)(b) whenever a power to inquire is conferred upon a

body, the said body shall have, for the effective exercise of such power in the absence of any restriction to the contra in the law itself to constitute a

Committee, to gather the necessary materials to enable the body to proceed with the consideration of the matter further. This is not a case where

the Board had abdicated its powers in favour of the Enquiry Committee. The Enquiry Committee has been constituted to gather the materials and

submit the same with its recommendations to the Board for deciding the further course of action in exercise of its powers under Ss. 43, 43(A) and

I see no merit in this objection on behalf of the petitioners and the procedure adopted by the Board is quite in accordance with law and well

within its competence and authority.

So far as the grievance expressed in the affidavit regarding the absence of notice of examination of witnesses and the non-furnishing of the copy

of the report of the Enquiry Committee is concerned, the first respondent in its counter-affidavit has contended that the Enquiry Committee, Trichy

conducted the enquiries and the petitioners were informed of the enquiry by the said committee. The plea of the petitioners regarding the non-

furnishing of the report of the Enquiry Committee is stated by the 1st respondent to be false. The relevant records of the Board have been

produced. It is found from the records that subsequent notices have been issued by the Board after the receipt of the report dated 13-2-1980 of

the Enquiry Committee, for the purpose of consideration of the report and the parties made their appearance through their counsel. Sufficient

opportunity appears to have been given to produce their witnesses and also further materials even before the Board and as a matter of fact,

witnesses appear to have been examined and cross-examined also. No grievance of the alleged non-furnishing of the copy of the report of the

enquiry appears to have been made on any one of the hearings before the Board. Additional counter-affidavit was also filed by the writ petitioners

(respondents 2, 3 and 5 before the Board) in August, 1980 and even in the said counter-affidavit no grievance regarding any want of sufficient

opportunity or the alleged non-furnishing of the report appears to have been made. Viewed and considered in the light of the claims made by the

first respondent and the relevant records, it appears that the plea of the petitioners regarding lack of opportunity and non-furnishing of the copy of

the report is purely an afterthought. The participation of the petitioners herein in the inquiry and the hearings before the Board appears to have been

with full knowledge of the report of the Enquiry Committee, Trichy. The plea of alleged violation of principles of natural justice has no merit and the

same, is, therefore, rejected as wholly untenable.

So far as the acts of mismanagement and irregularities dealt with and found by the Board, are concerned, in my view, they are based upon

sufficient, proper and relevant materials. The conditions and stipulations contained in the wakf deed seem to have been observed only in their

breach. The plea that there was no allegation by any one regarding the cutting of trees by the Muthawallis and they cannot be indicted on that

account is misconceived. Various acts of mismanagement were alleged and if in the course of enquiry the details regarding the same including the

unlawful cutting of trees are ascertained and found out, the petitioners cannot escape liability from the consequences thereof. Equally untenable are

the contentions urged on behalf of the petitioners that it is not necessary for the Muthawallis to answer the various charges levelled against them

and that it is only for the Board to substantiate the allegations regarding the acts of mismanagement. The indisputable materials on record and some

of the very admissions on behalf of the petitioners themselves constitute sufficient ground to order the removal of the Muthawallis in office and there

is every justification for assuming direct control of the management and administration of the wakf. The action appears to be not only genuine but in

the best interests of the better and proper administration of the wakf, When a case of gross mismanagement by the body of. Muthawallis in charge

of the administration has been found, liability cannot be avoided by merely contending that there is no individual indictment of the Muthawallis with

reference to specific acts of illegality or irregularity. This is not an action for surcharge and the materials on record are, in my view, more than

sufficient to justify the course of action taken by the Board in the impugned proceedings. Reliance upon the decision reported in T.E. Mohammed

Shareef Vs. The Superintendent (Wakfs), Central Zone and Others, is wholly inappropriate. That was a case wherein the question in issue was

about the compentency of the Board or the superintendent of wakfs to interfere with the management of the wakf properties pending action to

remove the Muthawalli, there is no scope for relying upon that decision for this case.

The plea regarding the claims of succession in terms of the wakf deed are premature and at any rate it does not lie in the mouth of the

petitioners who have been ordered to be removed to raise such pleas. At this stage, the impugned order only provides for assumption of direct

control and management for a period of one year. Such assumption of management in my view, would also help to effectively administer the

properties and devise sufficient methods to streamline the administration of the properties and their management, before the question of

appointment of new set of Muthawallis or appointment of a Committee of Management is taken up for consideration.

For the foregoing reasons, in my view, there are no merits in the above writ petition. The writ petition, therefore, fails and shall stand dismissed.

No costs.

Petition dismissed.