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2004 DIGILAW 642 (CAL)

ABDUL MABOOD KAZI v. BOARD OF WAKF

2004-09-22

BHASKAR BHATTACHARYA

body2004
BHASKAR BHATTACHARYA, J. ( 1 ) THIS application under Article 227 of the Constitution of India is at the instance of some of the members of a Mutawalli Committee constituted under section 63 of the Wakf Act, 1995 (hereinafter referred to as the Act) which has since been removed and is directed against order dated 30th April, 2004 passed by the Presiding Officer, Wakf Tribunal, West Bengal, in Appeal No. 1 of 2004 thereby approving the order of removal dated 31" December, 2003 passed by the Wakf Board. ( 2 ) THERE is no dispute that the petitioners along with others were the members of the Mutawalli Committee appointed under section 63 of the Act which had been supervising the Wakf property in dispute from 2000. ( 3 ) IN the year 2002, on the basis of some allegations against the Committee of which the petitioners are the members, an enquiry was held by an Inspector of the Board at the instance of the Chief Executive Officer of the Board and a report was submitted to the said Chief Executive Officer pointing out various irregularities committed by the Mutawalli Committee of the petitioners. Subsequently, the Board directed the Mutawalliship and Enrolment Committee ("me Committee"), to enquire into the matter. The said ME Committee issued notice upon the present petitioners by certificate of posting on December 19, 2003 thereby fixing 30th December, 2003 for hearing. On 30th December, 2003, the date fixed for hearing, none appeared on behalf of the petitioners and the me Committee recommended removal of the said Committee and appointment of a new Mutawalli-Committee in place of old Committee. It appears from the record that on the very next day viz. 31st December, 2003 the Board of Wakf had approved such recommendation and consequently, such order was communicated to the petitioners. In the order communicating the decision of the Board it is expressly mentioned that such removal was made under sections 64 (1) (g), (h), (i) and (k) of the Act. ( 4 ) BEING dissatisfied with the decision of removal of the Mutawalli-Committee of the petitioners, they preferred an appeal before the Wakf Tribunal and by the order impugned herein the said Tribunal has dismissed the appeal. ( 5 ) BEING dissatisfied, the petitioners have come up with the present application under Article 227 of the Constitution of India. ( 4 ) BEING dissatisfied with the decision of removal of the Mutawalli-Committee of the petitioners, they preferred an appeal before the Wakf Tribunal and by the order impugned herein the said Tribunal has dismissed the appeal. ( 5 ) BEING dissatisfied, the petitioners have come up with the present application under Article 227 of the Constitution of India. While entertaining this application, a learned Single Judge of this Court having granted an interim order, the opposite party filed an application for variation of such interim order and while taking up such application for variation of interim order, this Court decided to hear out the main revisional application by treating the application for variation of interim order as the affidavit-in-opposition to the revisional application. ( 6 ) ON behalf of the Board of Wakf, the original records were produced and accordingly, submissions were made by the learned Counsel for the parties on the basis of the materials on record so placed. ( 7 ) MR. Munshi, the learned Advocate appearing on behalf of the petitioners has made threefold submission in support of this application. ( 8 ) FIRST, Mr. Munshi has contended that his clients were removed from mutawalliship by not following the provisions contained in section 64 of the act. Mr. Munshi contends that according to those provisions, it is for the Board of Wakf to take decision after giving an opportunity of hearing to the petitioners and such decision must be taken by at least 2/3rd majority of the members of board of Wakf. ( 9 ) ACCORDING to Mr. Munshi, in the present case, the ME Committee issued a purported notice under certificate of posting on December 19, 2003 thereby fixing 30th December, 2003 for enquiry. By placing the envelope sent to the petitioner No. 1 before this Court, Mr. Munshi pointed out that although such notice was posted on 19th December, 2003 but as it appears from the postal mark of post office where the petitioner No. 1 resides, the same was received by that post office on 30th December, 2003 itself. Therefore, the requirement of giving seven days notice as mentioned in Rule 17 of the West Bengal Wakf rules, 2001 (hereinafter referred to as the Rules) was not complied with. Mr. Munshi further contends that apart from the petitioner No. 1, the other petitioners did not at all receive any notice. Therefore, the requirement of giving seven days notice as mentioned in Rule 17 of the West Bengal Wakf rules, 2001 (hereinafter referred to as the Rules) was not complied with. Mr. Munshi further contends that apart from the petitioner No. 1, the other petitioners did not at all receive any notice. ( 10 ) SECONDLY, Mr. Munshi contends that the law having directed the Board of Wakf to take final decision of removal by at least 2/3rd majority, such power cannot be delegated to ME Committee. Mr. Munshi points out that the Board has not taken any independent decision but has simply approved the recommendation of ME Committee. According to Mr. Munshi, the recommendation of the ME Committee can only be taken as a preliminary report, but it is for the Board to take appropriate decision by 2/3rd majority and before taking decision, fresh notice of hearing must be given to the person against whom such decision will be taken. ( 11 ) MR. Munshi further contends that sending of notice by certificate of posting does not carry any presumption of service as in the case of sending a notice by registered post and thus, in this case, the Tribunal acted illegally and with material irregularity in holding that notice was duly served upon the petitioners. ( 12 ) THE aforesaid contentions of Mr. Munshi have been seriously disputed by Mr. Basu, the learned Advocate appearing on behalf of the private-respondent. Mr. Basu contends that apart from the notice issued on 19th december, 2003, previously when enquiry was made by the Inspector, the petitioners participated in the enquiry and had knowledge of allegations made against them and as such, even if it is assumed for the sake of argument that the petitioner No. 1 got notice issued by the ME Committee on 30th December, 2003, for that reason, the decision of the Board cannot be quashed. Mr. Basu contends that other petitioners than the petitioner No. 1 have not come forward showing the date of receipt of the envelopes sent to them. ( 13 ) MR. Basu further contends that ME Committee having been constituted in terms of the Regulations framed under the Act, there was no necessity of giving fresh notice by the Board itself and the Board did not commit any illegality in approving the decision of the duly constituted ME Committee. ( 14 ) MR. ( 13 ) MR. Basu further contends that ME Committee having been constituted in terms of the Regulations framed under the Act, there was no necessity of giving fresh notice by the Board itself and the Board did not commit any illegality in approving the decision of the duly constituted ME Committee. ( 14 ) MR. Yusuf, the learned Advocate appearing on behalf of the Board has supported the contention of Mr. Basu and has contended that ME Committee has been constituted under the Regulations framed under section 110 of the act and before removal of the Mutawallies, the formalities prescribed by the rules framed under section 109 of the Wakf Act have been compiled with. He, thus, prays for dismissal of the present revisional application. ( 15 ) FROM the aforesaid contentions advanced by the learned Counsel for the parties the following questions come up for consideration in this revisional application: (A) Whether the ME Committee can investigate the allegations made against the petitioners for removal in terms of section 64 of the Act? (B) Whether after the recommendation of removal by the ME Committee, the Board is further required to give notice upon the Mutawallies for the purpose of their removal from the Office on the basis of such report? (C) Whether the ME Committee can issue notice of hearing by certificate of pos'ting and whether in the case before us, the fact that notice was received by petitioner No. 1 on the date of enquiry itself justifies setting aside decision of the Board? (D) Whether the Board is required to take specific decision indicating that such recommendation was approved by 2/3rd majority as enjoined under the Act ? ( 16 ) BEFORE I proceed to deal with those questions, it should be recorded that in terms of section 109 of the Act, the Government of West Bengal has enacted west Bengal Wakf Rules, 2001 which has come into operation with effect from june 18, 2001. Similarly, in exercise of powers conferred under section 110 of the Act, West Bengal Wakf Regulations, 2002 have been made. Similarly, in exercise of powers conferred under section 110 of the Act, West Bengal Wakf Regulations, 2002 have been made. ( 17 ) FOR the purpose of deciding the aforesaid questions it will be profitable to refer to the provisions contained in sections 27, 64, 70 and 71, 109 and 110 of the Act and Rules 14, 15, 17 and 22 of the Rules and Regulations 11, 12 (d), 12 (8), 12 (14) of the Regulations and those are quoted below: "section 27. Delegation of powers by the Board.-The Board may, by a general or special order in writing, delegate to the Chairperson, any other member, the Secretary or any other officer or servant of the Board or any area committee, subject to such conditions and limitations as may be specified in the said order, such of its powers and duties under this Act, as it may deem necessary. Section 64. Section 64. Removal of Mutawalli.- (1) Notwithstanding anything contained in any other law or the deed of Wakf, the Board may remove a mutawalli from his office if such Mutawalli - (a) has been convicted more than once of an offence punishable under section 61; or (b) has been convicted of any offence of criminal breach of trust or any other offence involving moral turpitude, and such conviction has not been reversed and he has not been granted full pardon with respect to such offence; or (c) is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of mutawalli; or (d) is an undischarged insolvent; or (e) is proved to be addicted to drinking liquor or other spirituous preparations, or is addicted to the taking of any narcotic drugs; or (f) is employed as a paid legal practitioner on behalf of, or against, the wakf; or (g) has failed, without reasonable excuse, to maintain regular accounts for two consecutive years or has failed to submit, in two consecutive years, the yearly statement of accounts, as required by sub-section (2) of section 46; or (h) is interested, directly or indirectly, in a subsisting lease in respect of any Wakf property, or in any contract made with, or any work being done for, the Wakf or is in arrears in respect of any sum due by him to such Wakf; or i) continuously neglects his duties or commits any misfeasance, malfeasance, misapplication of funds or breach of trust in relation to the Wakf or in respect of any money or other Wakf property; or (j) wilfully and persistently disobeys the lawful orders made by the Central government, State Government, Board under any provision of this Act or rule or order made thereunder; (k) misappropriates or fraudulently deals with the property of the Wakf. (2) The removal of a person from the office of the Mutawalli shall not affect his personal rights, if any, in respect of the Wakf property either as a beneficiary or in any other capacity or his right, if any, as a sajjadanashin. (2) The removal of a person from the office of the Mutawalli shall not affect his personal rights, if any, in respect of the Wakf property either as a beneficiary or in any other capacity or his right, if any, as a sajjadanashin. (3) No action shall be taken by the Board under sub-section (1), unless it has held an inquiry into the matter in a prescribed manner and the decision has been taken by a majority of not less than two-thirds of the members of the Board. (4) A Mutawalli who is aggrieved by an order passed under any of the clauses (c) to (j) of sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final. (5) Where any inquiry under sub-section (3) is proposed, or commenced, against any Mutawalli, the Board may, if it is of opinion that it is necessary so to do in the interest of the Wakf, by an order suspend such Mutawajli until the conclusion of the inquiry: provided that no suspension for a period exceeding ten days shall be made except after giving the Mutawalli a reasonable opportunity of being heard against the proposed action. (6) Where any appeal is filed by the Mutawalli to the Tribunal under sub-section (4), the Board may make an application to the Tribunal for the appointment of a receiver to manage the Wakf pending the decision of the appeal, and where such an application is made, the Tribunal shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 to 1908) appoint a suitable person as receiver to manage the Wakf and direct the receiver so appointed to ensure that the customary or religious rights of the Mutawalli and of the Wakf are safeguarded. (7) Where a Mutawalli has been removed from his office under sub-section (1), the Board may, by order, direct the Mutawalli to deliver possession of the Wakf property to the Board or any officer duly authorised in this behalf or to any person or committee appointed to act as the Mutawalli of the Wakf property. (7) Where a Mutawalli has been removed from his office under sub-section (1), the Board may, by order, direct the Mutawalli to deliver possession of the Wakf property to the Board or any officer duly authorised in this behalf or to any person or committee appointed to act as the Mutawalli of the Wakf property. (8) A Mutawalli of a Wakf removed from his office under this section shall not be eligible for reappointment as a Mutawalli of that wakf for a period of five years from the date of such removal. "section 70. Inquiry relating to administration of Wakf.-Any person interested in a Wakf may make an application to the Board supported by an affidavit to institute an inquiry relating to the administration of the Wakf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the Wakf are being mismanaged, it shall take such action thereon as it thinks fit. SECTION 71. Manner of holding enquiry.- (1) The Board may, either on an application received under section 70 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 a Wakf and take such action as it thinks fit. (2) For the purposes of an inquiry under this section, the Board or any person authorised by it in this behalf, shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) for enforcing the attendance of witnesses and production of documents. Section 109. Power to make rules.- (1) The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act, other than those of Chapter III. (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely: (i ). . . . . . . . . . . . . . . . . . (ii ). . . . . . . . . . . . . . . . . . . (iii ). . . . . . . . . . . . . . . (iv ). . . . . . . . . . . . . . . . . . . . . . . (ii ). . . . . . . . . . . . . . . . . . . (iii ). . . . . . . . . . . . . . . (iv ). . . . . . . . . . . . . . . . . . . . (xiv) the manner in which any inquiry may be held under section 64 or section 71; (xv ). . . . . . . . . . . . . (xvi ). . . . . . . . . . . . . . . . . . . . . . . SECTION 110. Powers to make regulations by the Board.- (1) The Board may, with the previous sanction of the State Government, make regulations not inconsistent with this Act or the rules made thereunder, for carrying out its functions under this Act. (2) In particular, and without prejudice to the generality of the foregoing powers, such regulations may provide for all or any of the following matters, namely: (a ). . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . . . . (3) All regulations made under this section shall be published in the Official gazette and shall have effect from the date of such publication. Rule 14. Inquiry for recovery of the property of the Wakf by the collector.- For the purpose of sub-section (1) of section 52, the Board may cause an enquiry to be made either by one or more members, or by one or more officers or jointly by members and officers, of the Board duly authorised by it. Such enquiry must be an open enquiry and shall be taken up after notice in writing for ten days to be served upon the parties associated with the alleged illegal transfer of Wakf properties. Such enquiry must be an open enquiry and shall be taken up after notice in writing for ten days to be served upon the parties associated with the alleged illegal transfer of Wakf properties. The place and the date of enquiry shall be decided by the inquiring authority. RULE 15. Service of notice to the encroacher.-The notice from the chief Executive Officer upon an encroacher of Wakf property under sub-section (1) of section 54 shall be served as required under sub-section (2) of the said section, - (a) by giving or tendering the notice, or by sending it by registered post, to the encroacher, or (b) if such encroacher cannot be found, by affixing the notice on some conspicuous part of his last known place of abode or business, or by giving or tendering the notice to some adult member of his family or any other adult person living with the family or by causing the notice to be affixed on some conspicuous part of the property to which it relates: provided that where the encroacher on whom the notice is to be served is a minor, service upon his guardian or upon any adult member of his family or any other adult person living with the family shall be deemed to be the service upon the minor. RULE 17. Manner of inquiry related to removal of Mutawalli.- For the purpose of sub-section (3) of section 64, the Board shall cause an inquiry to be made by a member, or an officer, of the Board duly authorised by it. The member or the officer, as the case may be, making the inquiry shall give the Mutawalli an opportunity of being heard after giving at least seven days' notice to him. RULE 22. Manner of inquiry relating to administration of Wakf.- for the purpose of section 70 read with clause (a) of sub-section (1), of section 71, the Board shall cause an inquiry to be made by a member or an officer of the Board duly authorised by it. The member or the officer, as the case may be, shall give notice in writing for at least seven days' upon the parties concerned. The place and date of such inquiry shall be decided by the inquiring authority. REGULATIONS 11. DECISION BY MAJORITY OF VOTES:- 11. The member or the officer, as the case may be, shall give notice in writing for at least seven days' upon the parties concerned. The place and date of such inquiry shall be decided by the inquiring authority. REGULATIONS 11. DECISION BY MAJORITY OF VOTES:- 11. 1 All questions at any meeting shall be determined by majority of votes of the members present 'and voting: provided that in case of equality of votes, the Chairperson or the presiding member shall have a second or casting vote: provided further that the members holding divergent opinion shall be entitled to record their note of dissent and such note of dissent shall be incorporated in the proceedings of the meeting: provided also that a member of the Board who himself or a near relation of whom is involved as a party to any transfer/transaction in respect of any wakf property will not participate in the discussion or cast his vote in the discussion in a meeting of the Board or the sub-committee on the issue in which the proposal for such transfer/transaction relating to the particular wakf property (s) is discussed or to be discussed. Regulation 12 (1) (d ). The Board may, whenever it considers necessary, establish either generally or for a particular purpose the following committee, namely: (a ). . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . (d) Mutawalliship and Enrolment Committee. (e ). . . . . . . . . . . . . . . . . . . . REGULATION 12 (8 ).-It shall be the duty of the Mutawalliship and Enrolment committee to recommend in the matters concerning enrolment of Wakfs and appointment and removal of Mutawallis of Wakf Estates. REGULATION 12 (14 ).-All proceedings of the committees shall be subject to approval by the Board unless empowered under Regulation 12 hereinabove. " ( 18 ) AT the very outset, it should be borne in mind that the scope of an enquiry under section 70 is different from the one prescribed in section 64 of the Act. REGULATION 12 (14 ).-All proceedings of the committees shall be subject to approval by the Board unless empowered under Regulation 12 hereinabove. " ( 18 ) AT the very outset, it should be borne in mind that the scope of an enquiry under section 70 is different from the one prescribed in section 64 of the Act. On the basis of enquiry under section 70, if mismanagement of any Wakf is found, the Board is vested with power to take such action as it thinks fit on the basis of decision taken by the majority of the members. But if the Board wants to remove any Mutawalli on the basis of such enquiry, then separate action under section 64 should be initiated afresh. The words "take such action" referred to in section 70 do not authorise a Board to remove a Mutawalli on the basis of enquiry under that section, because, for removal of a Mutawalli, two-third majority amongst the members of the Board is necessary as provided in section 64. ( 19 ) MOREOVER, the procedures of enquiry under those two sections are provided separately both in the Act and in the Rules. While in Rule 17, specific provision is made for giving opportunity to the Mutawalli of being heard while making enquiry in addition to giving seven days' notice, such provision of giving opportunity of hearing is absent in Rule 22 dealing with the enquiry referred to in section 70 although there is provisions of giving seven days' notice upon the parties concerned. ( 20 ) MOREOVER, the enquiry referred to in section 64 must be made as prescribed in the Rules which specifically speak of appointment of one member or officer of the Board. Therefore, such enquiry cannot be made by ME committee which consists of several members. At this juncture, it may be mentioned here that although in Rule 14, relating to enquiry under section 52 of the Act, it is stated that the enquiry may be conducted by more than one member or officer but in Rule 17, it is specifically mentioned that such enquiry should be made by one person. At this juncture, it may be mentioned here that although in Rule 14, relating to enquiry under section 52 of the Act, it is stated that the enquiry may be conducted by more than one member or officer but in Rule 17, it is specifically mentioned that such enquiry should be made by one person. Such different mode of constitution of the enquiry committees in respect of two subject-matters in the self-same Rules manifests the clear intention of the law makers that in case of enquiry under section 64 of the Act, the Committee must be constituted by one member only. ( 21 ) IN the case before us, there is no dispute that the enquiry before removal of the petitioners was done by the ME Committee and as such, it must be concluded that no enquiry as provided in Rule 17 was conducted. It is also established that the Board did not appoint any person in terms of Rule 17 to enquire for the purpose of removal of the petitioners and such person did not issue any notice of hearing to the petitioners after communicating the precise grounds on which the Board intended to remove the petitioners. ( 22 ) ALTHOUGH, by the Regulation 12 (8), the ME Committee is vested with power to enquire on the question, inter alia, of removal of Mutawalli, in my opinion, in view of specific provision contained in the Act and the Rules providing enquiry by a Committee consisting of not more than one member for removal of a Mutawalli, the result of any enquiry made by ME Committee on such question of removal of a Mutawalli should be taken as nothing but a preliminary report and on the basis of such report, the Board can at the most decide to proceed afresh by following the provisions contained in section 64 and Rule 17 mentioned above. It may be mentioned here that section 110 of the Act itself suggests that the Regulations must not be inconsistent with the provisions contained in the rules and the said Regulation 12 (8) being inconsistent with the Rule 17 cannot have overriding effect over Rule 17. It may be mentioned here that section 110 of the Act itself suggests that the Regulations must not be inconsistent with the provisions contained in the rules and the said Regulation 12 (8) being inconsistent with the Rule 17 cannot have overriding effect over Rule 17. Moreover, that the provisions contained in the regulations cannot have any application to the proceedings of removal of mutawalli will appear from the fact that Regulation 11 speaks of taking all the decisions of the Board by a simple majority amongst the members whereas the act directs that the decision to remove a Mutawalli must be taken by two-third majority. Therefore, the legislature by necessary implication kept the mode of removal of the Mutawalli beyond the purview of the Regulations. The fact that in the Regulations there is no provision for taking any decision by two-third majority of the members of the Board except as provided in Regulation 3. 1 for selecting the place of meeting of the Board outside Kolkata, itself suggests that for removal of a Mutawalli, the Regulations have no role to play. Thus, the ME committee being the creature of the Regulations, cannot encroach upon the province of the Rules. ( 23 ) IT is therefore clear that in this case, there has been no enquiry against the petitioners as provided in section 64 of the Act or Rule 17 of the Rules, and the Board simply on the basis of the recommendation of the ME Committee could not remove the petitioners. Thus, the removal of the petitioners was not preceded by a valid enquiry provided under the Act and the Rules. ( 24 ) REGARDING the service of notice of enquiry under Rule 17, although in the Rules, there is no specific provision as regards the mode of service, in my view, the manner of service provided in Rule 15 should be followed as the enquiry provided in section 54 of the Act is of equal importance with that of section 64 because in both the cases, the right of a person in the immoveable property is affected by the result of adjudication and against such adjudication, appeal lies to the Tribunal. Therefore, notice of enquiry under Rule 17 should be served upon the Mutawalli in the same manner as provided in Rule 15 and to avoid unnecessary repetition, the mode of service of notice was not again mentioned in Rule 17. Service of notice under certificate of posting is not the prescribed mode mentioned in Rule 15. Over and above, in this case, the envelope sent to the petitioner No. 1 itself indicates that even the seven days' notice was not given by the ME Committee as the post office under the jurisdiction of which the petitioner No. 1 resides received the envelope on December 30, 2003, the date fixed for hearing by the ME Committee and according to the other petitioners, they did not receive any envelope. ( 25 ) I do not find any substance in the contention of Mr. Basu, the learned advocate appearing on behalf of the opposite party, that just because the petitioners participated in the earlier enquiry on the basis of complaints of the opposite party in the year 2002 presumably under section 70 of the Act and were aware of the allegations levelled against them, there is no necessity of complying with the formalities required under section 64 of the Act or Rule 17 of the Rules for their removal. In my opinion, by virtue of the power conferred under section 27 of the Act, the provisions contained in section 64 cannot be delegated to ME Committee in defiance of section 64 of the Act and Rule 17 of the Rules. ( 26 ) I now propose to deal with the two decisions cited by Mr. Basu. Those are the decisions of Supreme Court in the case of Maneka Gandhi vs. Union of india and Anr. , reported in AIR 1978 SC 597 and in the case of Mohinder Singh gill and Anr. vs. Chief Election Commissioner, New Delhi and Ors. , reported in air 1978 SC 851 . ( 27 ) SO far as the "decision of Maneka Gandhi (supra) is concerned, Mr. Basu strongly relied upon the observations of Supreme Court at paragraph 61 of the judgment where the Supreme Court quoted with approval the observation of lord Parker, as regards necessity of complying with the principles of natural justice in quasi-judicial enquiry as well as administrative enquiry. Basu strongly relied upon the observations of Supreme Court at paragraph 61 of the judgment where the Supreme Court quoted with approval the observation of lord Parker, as regards necessity of complying with the principles of natural justice in quasi-judicial enquiry as well as administrative enquiry. It was pointed out by Supreme Court that what particular Rule of natural justice should apply to a given case, depends on the facts and circumstances of that case, the framework of law under which the enquiry was held and the constitution of the tribunal or body of persons appointed for that purpose. According to Supreme court whenever a complaint is made before the Court that the principle of natural justice has been contravened, the Court is to decide whether the adherence of that Rule was necessary for a just decision in the fact of the case. ( 28 ) IN the case before us, I have already pointed out that specific Rule has been enacted laying down the mode of enquiry under section 64 of the Act. Therefore, in an enquiry under section 64, the authority must comply with that statutory directions and without complying with such mandate the authority cannot say that principles of natural justice have been substantially complied with. ( 29 ) IN the case of Mohinder Singh Gill (supra), Mr. Basu relied upon observations made in paragraphs 75, 76 and 91; I fail to understand how the principles laid down in the said decision can have any application to the facts of the present case. In the said case the Supreme Court was considering the scope of Article 324 of the Constitution dealing with the powers to be exercised by Election Commission. In my view, the principles laid down in the said decision cannot have any relevance to the facts of the present case. ( 30 ) IT is now settled position of law that if by statute any particular mode is prescribed for holding an enquiry by a person having specific qualification, for the purpose of holding a valid enquiry, the said provision must be complied with and there cannot be any departure. Once substantial deviation is found, it should be presumed that enquiry was not in accordance with law. ( 31 ) I, thus, find that decisions cited by Mr. Basu are of no avail to his client. Once substantial deviation is found, it should be presumed that enquiry was not in accordance with law. ( 31 ) I, thus, find that decisions cited by Mr. Basu are of no avail to his client. ( 32 ) I, therefore, hold that in the present case, the petitioners were removed from Mutawalliship by not complying with the requisite statutory provisions contained in the Act and the Rules and as such, the said order of removal should be set aside. The Tribunal did not go into those questions and had accepted the position that a recommendation of ME Committee appointed under the Regulations could be approved by Board without following the procedure laid down in section 64 of the Act read with Rules framed thereunder. We must not confuse this case with the one of supersession of Committee of management as provided in section 67 of the Act because the Committee in question was not appointed by the Wakf as provided in that section but this Committee was appointed under section 63 of the Act and the removal has been made specifically by mentioning sections 64 (1) (g), (h), (i) and (k) of the Act. Moreover, for taking action under section 67 of the Act, at least one month's notice, as required under sub-section (2) thereof, must be given. ( 33 ) THE orders impugned are, thus, set aside. This order will, however, not stand in the way of the Board in proceeding afresh by complying with the formalities provided in the Act and the Rules for removal of the Mutawalli against the petitioners. ( 34 ) IN the facts and circumstances, there will be, however, no order as to costs. Application allowed.