K. S. PUTTASWAMY, J. ( 1 ) IN this petition under Art. 226 of the Constitution, the petitioner has challenged the letter No. KTW (MVZ-2) 72 TKR 79 dated 10-4-I980 (Annexure-F) addressed by the Secretary, Karnataka Board of Wakfs (hereinafter -referred to as the board)-respondent No. 1 to the Chairman, District Wakf Committee, tumkur-respondent No. 2. ( 2 ) AT Halenahalli Village of tumkur District there is a Wakf called 'jumma Masjid' to which an agricultural land bearing Sy. No. 5 of the said village has been endowed. Prior to 23-11-1979, the petitioner was functioning as the mutawalli and Khazi of Jumma Masjid. As mutawalli of the wakf, the petitioner was in possession of the said land and cultivating the same. On 24-11-1979 the Board has issued a show cause notice (Annexure-D) under S. 43 of the Wakf Act, 1954 (Central Act 29 of 1954) (hereinafter referred to as the Act) to the petitioner proposing to remove him from the office of mutwalli for the reasons stated therein. Not unnaturally, the petitioner is resisting the said action of the Board and the enquiry registered' as Case No. KTW lcc 6 of 1980 is still pending before the Board. ( 3 ) WHILE the said enquiry is pending before the Board, its Secretary addressed the impugned letter dated 10-4-1980 to the Chairman of the District Wakf Committee and sent a copy thereof to the Tahsildar, sira, requesting him to provide necessary help in the matter to the chairman. The said letter addressed by the Secretary reads thus :"the Karnataka Board of Wakfs no. KTW (MVZ) 72 TKR no. 6, Cunningham Road, bangalore-560-052, dated: 10-4-1980 from: the Secretary, karnataka Board of Wakfs. To: the Chairman, district Wakf Committee, tumkur. Sir, sub : Affairs of Jumma Masjid at halenahalli, Sira Taluk. Ref: Your Letter No. DWC 896/- 79-80 dt. 31-12-1979. With reference to your letter cited above on the subject mentioned, I am to state that the mutawalli is reported to be not rendering services in the mosque for which the land is endowed, he is not entitled to hold the land any longer. So I request you to take possession of the land with the assistance of the Tahsildar, Sira, immediately and report the action taken early. Yours (Sd. ). . . . . . . . . . . . . . . . . . . . . . . So I request you to take possession of the land with the assistance of the Tahsildar, Sira, immediately and report the action taken early. Yours (Sd. ). . . . . . . . . . . . . . . . . . . . . . . . Secretary, the Karnataka Board of Wakfs. Copy to the Tahsildar, Sirs for information. He is requested to offer necessary help to the Chairman, district Wakf Committee in the matter. "on the basis of the aforesaid letter, the authorities sought to dispossess the petitioner of the aforesaid land. At that stage, the petitioner approached the Munsiff, Sira in O. S. No. 271 of 1980 for a permanent injunction to restrain the Secretary of the Board, the Chairman of the district Wakf Committee and another person by the name Syed Usman sab from interfering with his possession with an application for temporary injunction. On 4-10-80 the learned Munsif? rejected the application made by the petitioner for temporary injunction in the said suit inter alia on the ground that the suit filed without issuing two months notice under S. 56 of the Act to the board was not maintainable. Some time in the month of January, 1981 the petitioner has withdrawn the said suit and the same has been dismissed by the learned Munsiff as withdrawn. ( 4 ) ON 15-4-1981 the petitioner presented this writ petition challenging the aforesaid letter of the secretary with a prayer for stay of the operation of the said order and also for a temporary injunction restraining respondents 1 and 2 from interfering with his alleged possession of the aforesaid land. On the same day, Jagannatha Shetty, J. granted an interim stay for two weeks and directed, the case to be decided before the vacation judge. On 30-4-1981 Swami, J. issued rule nisi, but declined to grant the interim order for the following reasons:"there is no question of continuation of the interim order passed on 15-4-1981 in view of the fact that the land in question is stated to have been auctioned on 6-8-80 and the auction purchaser also has been put in possession pursuant to the auction and he has also paid Rs 1,200 to the -District Wakf Board as per the endorsement dt. "25-4-81 produced in the Court. Hance, the interim relief is refused". "25-4-81 produced in the Court. Hance, the interim relief is refused". From the above order it is manifest that the petitioner had raised crops on the said land and he has been dispossessed of the same atleast an 6-8-80, if not earlier. ( 5 ) THE petitioner has urged that the impugned direction issued by the Secretary and the dispossession if any thereto is in contravention of S. 43 (5) of the Act, unauthorised and illegal. ( 6 ) IN its return respondent no. 1 while justifying its letter has urged that there is a delay of more than a year in challenging its action and the writ petition is liable to be dismissed on that ground itself. It has alleged that the petitioner was dispossessed on 10-4-80 and the right of cultivation has been auctioned and the auction purchaser has cultivated the land. ( 7 ) SRI T. . N. Raghupathy, learned Counsel for the petitioner has contended that the impugned direction and the action taken thereto before the completion of the enquiry for removal from the office of mutawalli through the revenue agency is in violation of S. 43 (5) of the Act and is, therefore, illegal. ( 8 ) SRI Murlidhar Rao, learned counsel for respondents 1 and 2, while justifying the impugned direction of the Secretary and the action taken therelo urged for dismissing the petition on two grounds that will be noticed by me and dealt in the first instance, as they go into root of the matter. ( 9 ) SRI Rao urged that the letter dt 10-4-80 (Annexure-F) addressed by the Secretary and the action taken thereto urged for dismissing the petition on two grounds that will be noticed by me and dealt in the first instance, as they go to the root of the matter. 9. Sri Rao urged that the letter dt. 10-4-80 (Annexure-F) addressed by the Secretary to the Chairman and the Tahsildar was only in the nature of a private or departmental communication and was not an order and the same cannot, therefore be challenged in a proceeding under Art. 226 of the Constitution. In support of his contention Sri Rao placed strong reliance on a -Division Bench ruling of this Court in N. Bommon Bekram v. Government of Mysore (1 ). 9a. In support of his contention Sri Rao placed strong reliance on a -Division Bench ruling of this Court in N. Bommon Bekram v. Government of Mysore (1 ). 9a. Earlier I have extracted the entire letter addressed by the Secretary to the Chairman and the Tahsildar. In that letter or communication, the Secretary has directed the Chairman to take possession of the land from the petitioner with the assistance of the Tahsildar on the basis of which right of cultivation of the land has been sold and the petitioner was dispossessed. Even though, the said letter is not addressed to the petitioner, it has prejudicially and adversely affected the interests of the petitioner, cannot and is not disputed by Sri Rao also. The words 'order' 'direction' and 'communication' arc not terms of art. A command or a direction issued or even a communication addressed as in the present case, has necessarily to be construed only as an order or a direction and the fact that the same has not been addressed to the petitioner and has not been served on him and is only addressed to another authority cannot and does not make any difference in construing the same as an order or a direction. On this conclusion the letter addressed by the Secretary which undoubtedly has resulted in legal consequences against the petitioner, has only to be construed as an order or a direction and cannot bt construed as a private or a departmental communication. ( 10 ) IN Bommon Behram's case the facts were these. On the acquisition of the lands owned by Bomman behram the Land Acquisition Officer prepared a draft award proposing to award a sum of Rs. 13 lakhs and submitted the same to Government for approval under the proviso to S. 11 of the Land Acquisition Act. On that reference. Government without approving the said draft award, in a confidential communication directed the Land Acquisition Officer to award a sum of Rs. 6,57,870-15 as compensation and prepare a fresh draft award on the basis of that communication. Bommon Behram who was the owner of the lands challenged the validity of the proviso to S. 11 of the Act and the confidential communication addressed by Government to the Land Acquisition Officer. 6,57,870-15 as compensation and prepare a fresh draft award on the basis of that communication. Bommon Behram who was the owner of the lands challenged the validity of the proviso to S. 11 of the Act and the confidential communication addressed by Government to the Land Acquisition Officer. Upholding the objection urged for the state that the writ petition challenging the confidential communication addressed by Government was not maintainable, Tukol, J. Speaking for the Bench observed thus : "even assuming, as has been contended by the learned Advocate for the petitioners, that the concluding paragraph of this communication is in excess of jurisdiction, the question that we have to consider is whether a writ of certiorari can issue quashing this portion. The hurdles in granting this prayer are many. Firstly, it is confidential communication issued by the state Government to one of its subordinate officers giving certain directions which they are competent to give under the law Secondly, it does not embody any official decision in the matter, so as to affect adversely the rights of the petitioners, and thirdly, it is an administrative communication made in the course of the official duties and is not one which is made by either judicial or quasi Judicial body. Calling for our interference under Art. 226 of the Constitution. As laid down by the Madras High Court in kandaswamy v. Dy. Registrar of cooperative Societies, Coimbatore (AIR. 1954 Mad. 348), a departmental communication is not liable to be quashed by a writ of certiorari. " the above observations do not lay down that a communication that adversely affects a person, as in the present case, cannot be challenged by him in a proceeding under art. 226 of the Constitution. Secondly, the Court was not onsidering a situation as his arisen in the present case. Lastly, the communication of the Secretary when properly construed is nothing but an order or a direction intended to operate against the petitioner and undoubtedly operate against him as seen earlier. For all these reasons, the principles in bommon Behram's case does not really bear on the point and I, therefore, reject this contention of sri Rao. Lastly, the communication of the Secretary when properly construed is nothing but an order or a direction intended to operate against the petitioner and undoubtedly operate against him as seen earlier. For all these reasons, the principles in bommon Behram's case does not really bear on the point and I, therefore, reject this contention of sri Rao. ( 11 ) SRI Rao next contended that there is a delay of more than a year in the petitioner approaching this court and, therefore, this is a fit case in which this Court should decline to exercise its extraordinary jurisdiction in his favour. ( 12 ) ADMITTEDLY, the communication which I have construed it as an order, was not served on the petitioner at any time. An application made by the petitioner for a certified copy of the same as early as on 24-11-1980 was rejected by the Board as late as on 13-4-1981 (Annexure-H ). When the petitioner was about to be dispossessed or after dispossession as the case may be, he had approached the Civil Court in a suit in which the board inter alia urged that suit was not maintainable for want of a suit notice under S. 56 of the Act. As the said suit was likely to fail on that ground, the petitioner rightly withdrew the said suit and has approached this court immediately alter the rejection of his application for a copy of the leter dated 10-4-1980. In these circumstance it is difficult to hold that the petitioner has slept over the mater and there is any delay in the petitioner approaching this Court Hence, I reject this contention of Sri Rao. ( 13 ) AS I have rejected the two preliminary contentions urged by Sri rao, it is now necessary to examine the merits of the case. ( 14 ) JUMMAMASJID is a wakf within the meaning of that term occurring in S. 3 (1) of the Act, the petitioners was the mutawalli of the said wakf and that he has not so far been removed from that office and that only a proceeding for his removal is pending before the Board are not in dispute. As the mutawalli of the wakf, the petitioner was in possession and cultivating the lands endowed to the wakf and was taking its usufruct is not also disputed by the Board. As the mutawalli of the wakf, the petitioner was in possession and cultivating the lands endowed to the wakf and was taking its usufruct is not also disputed by the Board. S. 3 (f) of the Act inter alia declares a person managing or administering a wakf as a 'mutawalli'. The definition of the term 'mutawalli' does not really bring out the true status of a mutawalli in muslim law. In Bibi Siddique fatima v. Saiyed Mohammad Mahmood hasan (2) the Supreme Court speaking through Untwalia, J. has explained the position of a mutawalli in muslim law in these terms : "a mutawalli is like a Manager rather than a trustee (see page 498 ). The mutawalli, so far as the wakf property is concerned, has to see that the beneficiaries got the advantage of usufruct. We have already pointed out that under the Shia Law the property does not remain with the wakf. It is transferred to God or to the beneficiaries. At page 554 of Tyabji's famous book it is stated :-" The support and maintenance of the Wakf's family and andc. would seem under the Act to be deemed a purpose recognised by the Muslim Law as religious, pious or charitable: s. 2. This view was put forward by Ameer Ali, J. , with great learning in his dissenting judgment in Bikani Mia's case (1893 i. L. R. (20) Cal, 106". S. 527 at page 593 runs thus: "the mutawalli has no ownership right or estate in the Wakf property; in that respect he is not a trustee in the technical sense ; he holds the property as a manager for fulfilling the purpose of the Wakf s". A contrary statement of law at page 202 of Mulla's Mohomedan law, seventeenth edition based on the decision of the allahabad High Court in Mohammed in Qamar Shah Khan v. Mohammad Salamat Ali Shah Khan, A. I. R. 1933 All. 407 to the effect that "the mutawalli is not a mere superintendent or manager but is practically speaking the owner " is not a correct statement of law. 407 to the effect that "the mutawalli is not a mere superintendent or manager but is practically speaking the owner " is not a correct statement of law. In a later Full bench decision of the same Court in Moattar Raza V. Joint Director of consolidation, U. P. Camp at bareilly, AIR 1970 All 509 while overruling the earlier decision, it has been said at pages 513-14 :- "the legal status and position of a mutawalli under a wakf under the Musalman law is that of a Manager or Superintendent"the general powers of the mutawalli as mentioned in S. 529 of Tyabji's book are that he " may do all acts reasonable and proper for the protection of the Wakf property, and for the administration of the Wakf ". Under the definition of the term as also under the Muslim law, a mutawalli, as manager has the power to manage the properties endowed to the wakf or the wakf property. As mutawalli, the petitioner was in possession of the land and cultivating the same before the impugned direction was issued by the Secretary on 10-4-1980 is not also disputed by the board. ( 15 ) S. 43 (1) of the Act empowers the Board to remove a mutawalli from office on any one of the grounds enumerated in clauses (a) to (e) of that section. A mutawalli can be removed only after holding an enquiry and on the completion of such enquiry by a decision taken by a majority of not less than 3/4th of the members of the Board and not otherwise (vide) sub-section (4) of S, 43. A mutawalli removed under clauses (c) to (e) of sub-secti on (1) of S. 43 has also a right of appeal under sub-sec. (4a) of S. 43 of the Act. ( 16 ) SUB-SEC, (5) of S. 43 of the act that is material and has an important bearing on the question, reads thus:" Where a mutawalli has been removed from his office under sub-Sec. (1) or sub-sec. (4a) of S. 43 of the Act. ( 16 ) SUB-SEC, (5) of S. 43 of the act that is material and has an important bearing on the question, reads thus:" Where a mutawalli has been removed from his office under sub-Sec. (1) or sub-sec. (2), the board may, by order, direct the mutawalli to deliver possession of the wakf property to the board or any officer thereof duly authorised in his behalf or to any person or committee and appointed to act as the mutawalii of the wakf property; and the order of the Board shall be deemed to be a decree of a civil court and shall be executed by the civil Court as if it has passed the decree". Where a mutawalli has been removed from office sub-sec. (5) empowers the Board to direct the mutawalli so removed to deliver possession of the wakf property to the Board or such other person as rr. ay be authorised by it. An order under sub-sec. (5) can be made in the very order removing the mutawalli or by a separate order. An order made under S, 43 (5) is given the status of a decree of a Civil court and can be executed by the appropriate Civil Court as if it is a decree made by it. An order for delivery of possession of the wakf property by the mutawalli that is removed from office will be a decree for delivery of possession of the property and that decree can be executed by the appropriate Civil Court as if it is a decree made by it. When a recalcitrant quondam mutawalli does not deliver possession of the wakf property in pursuance of an order made by the Board under sub- sec. (5), the Board/decree holder can and should execute its order in a civil Court and obtain possession thereof from such person. As this is a special provision made for the enforcement of an order made by it under sub-sec. (5) of the Act, the board has necessarily to resort and enforce its order only in the manner. As the petitioner has not so far been removed from office of mutawalli, sub-sec (5) of S. 43 of the Act cannot be availed of by the Board and, therefore, the order made by the Secretary of the Board on 10-4-1980) cannot be sustained under this provision. As the petitioner has not so far been removed from office of mutawalli, sub-sec (5) of S. 43 of the Act cannot be availed of by the Board and, therefore, the order made by the Secretary of the Board on 10-4-1980) cannot be sustained under this provision. ( 17 ) S. 43 or any other provision of the Act or the Rules made thereunder do not empower the Board to take over the management of the wakf property from the mutawalli before an order for his removal is made by the Board. The Act does not empower fhe Board to take over the managenent of the wakf property from the mutawalli while a proceeding for his removal is pending before it. In the absence of such a power, it is not open to the Board to usurp that power and take over the management of the wakf property from the mutawalli before his removal. S. 43 (5) of the Act cannot be read as empowering the Board to take over the management before a mutawalli is removed from office. The power to take over the management before a mutawalli is removed from office cannot also be considered as an incidental or an ancillary power to hold an enquiry and thereafter remove a person from office of the mutawalli. Why the legislature has not conferred such a power on the Board is not a matter for the Court to decide. But, one thing that is clear that before a person is removed from office of mutawalli it would be somewhat incongruous to hold that he cannot manage the wakf property though he continues to be a mutawalli of the wakf. On any principle or authority, such a power cannot be read into the provisions of the Act before a person is removed from office of the mutawalli. ( 18 ) AS found earlier, the petitioner still continues to be a mutawalli of the wakf and the impugned order has the effect of preventing him from managing the property of the wakf before his removal by the board. On the above analysis of the provisions, it follows that the order dated 10-4-1980 made by the Secretary of the Board and the consequent dispossession if any, made are without the authority of law, illegal and are therefore, liable to be quashed. On the above analysis of the provisions, it follows that the order dated 10-4-1980 made by the Secretary of the Board and the consequent dispossession if any, made are without the authority of law, illegal and are therefore, liable to be quashed. I, therefore, quash the letter No. KTW (MVZ-2) 72 TKR 79 dated 10-4-1980 (Annexure-F) issued by the Secretary, Karnataka Board of Wakfs, Bangalore. But, this order does not prevent the Board from making an order under sub-sec. (5) of s. 43 of the Act if he is ultimately removed from fhe office of the mutawalli. ( 19 ) RULE issued is made absolute with costs payable by respondents 1 and 2. Advocate's fee Rs. 250. --- *** --- .