Judgment 1. Dargah Hazarath Araulla Sahah and Nabi Shah Bada Makhan situated at H. Siddaiah Road, Bangalore – respondent No. 2 herein is a wakf institution. Petitioner was appointed as the member of the Managing Committee of the said wakf. He was elected as the President of the Managing Committee on 05.03.2009. A show cause notice was issued to him on 27.12.2010 under Section 64(3) of the Wakf Act, 1995 (for short, ‘the Act”) as per Annexure-B alleging that being the President of the Wakf, he had failed in managing, administering and protecting the interest of the wakf property, in that, one Mr. M.B.Akbar who had started illegal construction in the wakf property was not prevented nor any action to stop the illegal construction was taken. 2. Petitioner was notified that an inquiry would be held under sub-rule (2) of Rule 56 of the Karnataka Wakf Rules. 1997 (for short, ‘the Rules’) by the Karnataka State Board of Wakfs (for short, ‘the Board’). Petitioner was called upon to filed objections within seven days, failing which the Board sold initiate inquiry and take a decision under Section 64, of the Act as required under law. This show cause notice was issued by the Chief Executive Officer of the Board. Petitioner submitted his reply on 04.01.2011 denying the allegations. 3. By the impugned order dated 14.01.2011, the Chief Executive Officer of the Board has held that the matter was placed before the Administrator of the Board and the Administrator accorded approval for the removal of the petitioner and another person from the membership of the Managing Committee of the Wakf, hence, the petitioner and the other member have been removed from the membership of the Managing Committee of the wakf for breach of trust and for failure to protect the property of the wakf. It is this order that is called in question in this writ petition. 4. Mr. Jayakumar S. Patil, learned Senior Counsel appearing for the petitioner has urged several grounds in support of the challenge made. It is essentially contended that the impugned order is passed by an incompetent authority. It is this order that is called in question in this writ petition. 4. Mr. Jayakumar S. Patil, learned Senior Counsel appearing for the petitioner has urged several grounds in support of the challenge made. It is essentially contended that the impugned order is passed by an incompetent authority. He refers to Section 64(1)(i) and sub-section (3) of Section 64 of the Act, to contend that it is only the Board which has the competency to remove the Mutawalli from office if such Mutawalli continuously neglects his duties and 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, that too after holding an inquiry into the matter in the prescribed manner and the decision has to be taken by a majority of not less than two-thirds of the members of the Board. He further invites the attention of the Court to sub-section (2) of Section 67 of the Act, to contend that even the power to supersede the committee of management is vested with the Board which has to be exercised by issuing notice setting forth the reasons for the proposed action and calling upon the Committee to show cause why such action shall not be taken. He also points out that as per sub-section (6) of Section 67 of the Act, instead of superseding the Committee under sub-section (2), the Board may remove any member thereof if it is satisfied that such member ha abused his position as such or had knowingly acted in a manner prejudicial to the interests of the wakf, after giving reasonable opportunity of showing cause against the proposed action. His submission is, in the instant case though the Board was not functioning at the relevant time and the Administrator has been appointed to discharge the powers and functions of the Board, it was the Administrator who could have exercised the powers of the Board, but not the Chief Executive Officer who has issued the show cause notice and passed the impugned order in the matter. 5. 5. The second contention of the learned Senior Counsel for the petitioner is that the impugned order is passed in violation of the principles of natural justice, in as much as, no reasons are forthcoming in the impugned order nor is there any discussion regarding the reply given by the petitioner to the show cause notice issued. 6. He has lastly contended that the entire action taken against the petitioner is bad in law s the inquiry is allegedly conducted by the Chief Executive Officer. It is he who is stated to have taken the decision to remove the petitioner from the membership. Later on approval of the Administrative is taken for removal after the order of removal is passed by the Chief Executive Officer. Therefore, he contends, the entire procedure followed is illegal. 7. After the removal of the petitioner along with another member, the 2nd respondent has inducted two other members. They are arrayed as respondents 3 & 4. In fact, petitioner has challenged their appointment as well. 8. Mr. Vivek Reddy, learned Counsel appearing for respondents 3 & 4, contends that sub-rule (1) of Rule 56 of the Rules stipulates that the Chief Executive Officer shall issue notice in Form-79 to the Mutawalli concerned against whom action is contemplated under Section 64 of the Act. Rule 37 of the Rules deals with the manner of inquiry to be held by the Chief Executive Officer. Therefore, the competent authority is the Chief Executive Officer who has to conduct the inquiry and as per Annexure-R1 the petitioner is found to have not taken due care to protect the interest of the wakf property as Mutawalli of the wakf inspite of illegal construction resorted to by one M.B.Akbar and therefore the Chief Executive Officer has found him guilty of the said charge. 9. Mr. Kothwal, learned Counsel for the Board submits that as per the complaint filed by the Additional Liason officer of the Board though illegal construction had been commenced in the wakf property, the petitioner herein did not take any action in stopping the illegal construction and that it was his inaction that paved way for the illegal construction. He also contends that as the petitioner has an alternative remedy of filing an appeal, as provided under sub-section (4) of Section 64 of the Act, before the Tribunal he cannot maintain this writ petition. 10. He also contends that as the petitioner has an alternative remedy of filing an appeal, as provided under sub-section (4) of Section 64 of the Act, before the Tribunal he cannot maintain this writ petition. 10. Having heard the learned Counsel for the parties and on careful consideration of the entire materials on record, I find that the show cause notice is issued under sub-section (3) of Section 64 of the Act, having decided to hold an inquiry into the allegations made against the petitioner stating that he had failed in his duty in properly managing, administering and protecting the interest of the wakf property. Petitioner has been alleged of neglecting his duties in not preventing one M.B.Akbar who had illegally started construction in the wakf property. Hence, the petitioner was liable for action under sub-section (1) of Section 64 of the Act. 11. Sub-section (1) of Section 64 of the Act, clothes the Board with the power to remove a Mutawalli from his office, if he is guilty of omissions and commissions mentioned therein, which includes neglecting the duties or committing any misfeasance/malfeasance or breach of trust in relation to the wakf property. 12. Sub-section (3) of Section 64 states that no action shall be taken by the Board under sub-section (1), unless it holds an inquiry into the matter in the prescribed manner and the decision is taken by a majority of not less than two-thirds of the members of the Board. Thus, it is clear that the power is vested with the Board to remove the Mutawalli after conducting an inquiry. The inquiry contemplated has to be held by the Board. 13. In the instant case, the Board has not held the inquiry. In fact, it is contended that the Board is no longer in existence, as an Administrator is appointed. If that is so, it was the Administrator who was required to conduct the inquiry and pass the order. The facts, as can be seen from the show cause notice issued and the impugned order passed, disclose that the Chief Executive Officer has issued the show cause notice and it is he who has passed the impugned order, though it is stated in the impugned order that after taking the approval of the Administrator, such an order is passed. The facts, as can be seen from the show cause notice issued and the impugned order passed, disclose that the Chief Executive Officer has issued the show cause notice and it is he who has passed the impugned order, though it is stated in the impugned order that after taking the approval of the Administrator, such an order is passed. Unless the inquiry is held by the Administrator and the order is passed by him, the order of removal cannot be said to be passed by the competent authority. The Chief Executive Officer is not vested with such powers. Therefore, he had no power or jurisdiction to hold the inquiry and pass the impugned order. 14. Rule 56 of the Rules on which Mr. Vivek Reddy places reliance deals with the procedure regarding removal of Mutawalli. Though the show cause notice can be issued by the Chief Executive Officer in Form-79 to the Mutawalli concerned against whom action is contemplated under Section 64 of the Act as provided under sub-rule (1) of Rule 56, the inquiry to be conducted is by the Board as is clear from sub-rule (2) of Rule 56, which states that the Board shall conduct summary inquiry in the manner prescribed under sub-rule (2) of Rule 37 of the Rules. Rule 37 relates to the manner of inquiry to be held by the Chief Executive Officer under sub-section (1) of Section 39. Section 39(1) of the Act, makes specific reference to the power of the Board to cause an inquiry to be held by the Chief Executive Officer in the prescribed manner to ascertain the properties and funds pertaining to the wakf under certain circumstances and on receipt of the report of inquiry from the Chief Executive Officer, the Board has to pass an order as stated therein under sub-section (2) of Section 39 of the Act. Therefore, Rule 37 read with Rule 56 will not clothe the Board or the Administrator to cause an inquiry to be conducted through the Chief Executive Officer for the purpose of removal of Mutawalli. On the other hand, as is made clear in sub-section (3) of Section 64 of the Act, 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. On the other hand, as is made clear in sub-section (3) of Section 64 of the Act, 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. It is also not the case of the respondent that the Chief Executive Officer has conducted the inquiry a directed by the Administrator. In fact, it is a moot point whether at all there can be any delegation by the Board/Administrator of the power to hold an enquiry for the removal of Mutavalli. It is not necessary to dilate on that question in this case. Therefore, it has to be held that the Chief Executive Officer had no jurisdiction to conduct the inquiry and pass the impugned order. 15. The second contention urged by the petitioner also merits acceptance as the impugned order does not disclose application of mind to the reply submitted by the petitioner to the show cause notice issued. There is no discussion regarding the defense taken by the petitioner. Such a serious action of removal of a member from the Managing Committee as Mutavalli that to based on allegations of misconduct, cannot be dealt with casualty as is done in the present case by the impugned order. The impugned order is therefore bad in law. 16. For the reasons stated above, this writ petition is allowed. The impugned order is set aside. Consequently, removal of the petitioner as Member/Mutawalli of the wakf stands set aside. Consequently the appointment made in the place of the petitioner is also set aside.