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2014 DIGILAW 3770 (MAD)

H. Sirajuddin v. Tamil Nadu Wakf Board

2014-10-11

S.RAJESWARAN

body2014
ORDER The petitioner herein in both the Civil Revision Petitions was the applicant in O.A.Nos.3 & 4 of 2010 before the Tribunal. The respondent herein was the respondent there. 2. Since the parties and issues in both the Civil Revision Petitions are one and the same, a common order is being passed to dispose of these two Civil Revision Petitions. 3. For the sake of convenience, the parties herein are referred to as per their rankings in the O.As. 4. The case of the petitioner is as follows: The petitioner herein filed two applications before the Tribunal. Application in O.A.No.3 of 2010 filed under Section 83 (1 and 2) of the Wakf Act, 1985 is to declare the proceedings of the Wakf Board dated 18.03.2010 as null and void and for permanent injunction restraining the respondent from passing any orders pursuant to the illegal proceedings dated 18.03.2010. The other application, i.e. O.A.No.4 of 2010 was filed challenging the proceedings of the Wakf Board dated 29.03.2010 and 26.05.2010. The case of the petitioner is that his father M.Hayath Basha was the Muthavalli of the Hazrath Zaheerullah Shah Qadri and Hazrath Ghulam Asadullah Shah Qadri Dargah, a registered and notified wakf which is under the control of the respondent herein. He was the Muthavalli till his death on 19.11.2008 and after him, the petitioner being his son, succeeded as the Muthavalli. The petitioner has been managing the above wakf well without any complaint from any quarters and he has been submitting the accounts and paying the contribution duly. While so, the respondent Board issued a show cause notice on 12.11.2009, calling upon the petitioner to explain on certain charges relating to non-submission of accounts from 2002-2003 and other related charges. Though the Charges are vague, the petitioner submitted the reply within the stipulated time which also acknowledged by the Wakf Board on 24.12.2009. Thereafter vide proceedings dated 18.03.2010 the Wakf Board called upon the petitioner to appear for an enquiry on 29.03.2010. Since no charge memo was issued to the petitioner, the enquiry itself was no nest in the law. Therefore the petitioner represented to the Board. Though the Board admitted that no charge memo was issued, it openly declared that orders for direct management would be issued very soon. Since no charge memo was issued to the petitioner, the enquiry itself was no nest in the law. Therefore the petitioner represented to the Board. Though the Board admitted that no charge memo was issued, it openly declared that orders for direct management would be issued very soon. As the action taken by the respondent Board was without jurisdiction and no nest in law, application in O.A.No.3/2010 was filed before the Wakf Tribunal for the aforesaid relief. 5. In O.A.No.4 of 2010, it is stated by the petitioner that a show cause notice dated 12.11.2009 was issued calling upon him to explain on certain charges relating to the non-submission of accounts from 2002-2003 and also the other charges, for which, the petitioner was not liable. The petitioner submitted his reply within time and the same was acknowledged by the respondent on 24.12.2009. The petitioner received a letter dated 18.03.2010 from the respondent calling upon him to appear for an enquiry on 29.03.2010. As no charge memo was issued, the enquiry itself is no nest in the eye of law. When this was pointed out by the petitioner to the respondent, the respondent had stated that orders would be issued declaring for direct management of the Board. Against the proceedings dated 18.03.2010, O.A.NO.3 of 2010 was filed by the petitioner. Notice was ordered and the matter was posted on 20.04.2010. The respondent had passed the impugned order dated 29.03.2010 and 26.05.2010, informing that the petitioner was removed from the Muthavalliship and direct management was ordered and the petitioner was directed to hand over the full charge. Aggrieved by the proceedings dated 29.03.2010 and 26.05.2010, O.A.No.4 of 2010 has been filed by the petitioner before the Wakf Tribunal. 6. The Wakf Tribunal by a common order dated 10.11.2010 dismissed both the applications and aggrieved by the same, the petitioner filed the above two C.R.P.Nos.1872 and 1873 of 2011. 7. Heard the learned counsel for the petitioner and the learned counsel for the respondent and I have also gone through the entire documents available on record. 8. Admittedly, the father of the petitioner was the Muthavalli till his death i.e. 19.11.2008 and thereafter, the petitioner succeeded to the Muthavalliship. When show cause notice dated 12.11.2009 was issued, it was properly and duly replied to by the petitioner and the same was also acknowledged by the respondent. 8. Admittedly, the father of the petitioner was the Muthavalli till his death i.e. 19.11.2008 and thereafter, the petitioner succeeded to the Muthavalliship. When show cause notice dated 12.11.2009 was issued, it was properly and duly replied to by the petitioner and the same was also acknowledged by the respondent. After acknowledging the reply, if the respondent wanted to proceed further, then, a proper charge sheet, containing definite and unambiguous charges, should have been issued to the petitioner and on the basis of the charge sheet only, enquiry should have been conducted by the respondent. On the contrary, straightaway enquiry has been fixed and the petitioner had been asked to come and participate in the enquiry wherein he was orally informed that orders would be issued taking over direct management by the respondent. Challenging that proceeding, O.A.No.3 of 2010 was filed and after final orders have been passed in the said O.A., O.A.No.4 of 2010 has been filed by the petitioner. 9. The Tribunal has casually dealt with the matter and that too in a curtly manner. Though the Trial Court found that show cause notice was issued and reply was submitted, still it upheld the final order passed by the respondent on the ground that the show cause notice itself is the charge memo, which, according to me, is absolutely illegal and unwarranted. 10. A perusal of the records would go to show that the show cause notice dated 12.11.2009 is not a charge sheet, as wrongly held by the Tribunal. It is only a show cause notice. In such circumstances, I am in entire agreement with the learned counsel for the revision petitioner that proper procedure has not been followed by the respondent before passing the final orders, which fact, was not properly appreciated by the Wakf Tribunal. 11. Further Section 64 of the Wakf Act, 1995 (Act 43/95) deals with removal of a Muthavalli and according to Section 64(1), the Board may remove a Muthavalli from his Office, if such Muthavalli get attracted with the provisions under Section 64(1) (a to k). However, Section 64(3) makes it very clear that no action shall be taken by the Board under Sub-Section 1, unless it has held an enquiry into the matter in a prescribed manner and the decision has been taken by a majority of members, not less than 2/3rd of the members of the Board. 12. However, Section 64(3) makes it very clear that no action shall be taken by the Board under Sub-Section 1, unless it has held an enquiry into the matter in a prescribed manner and the decision has been taken by a majority of members, not less than 2/3rd of the members of the Board. 12. In CDJ 2007 MHC 1146 (The President, Mecca Masjid Endowments and another vs. The Tamil Nadu Wakf Board, rep. By its Chief Executive Officer and others), this Court held that, compliance of Section 64(3) is mandatory and non-compliance of the same will result in illegality. 13. Admittedly, in the present case, after issue of a show cause notice and getting a reply from the petitioner, the Board has not conducted any enquiry into the matter by following the principles of natural justice i.e. issuing a charge memo and conducting the enquiry thereafter. Hence, the enquiry conducted by the Board is contrary to Section 64(3) of the Wakf Act and non-compliance of Section 64(3) results in illegality. 14. In the result, the common order of the Tribunal dated 10.11.2010 is unsustainable and therefore, the same is set aside. Consequently, the orders passed by the respondent taking direct control and management of the Wakf, removing the petitioner from Muthavalliship and the other consequential orders are also set aside. 15. However, liberty is given to the respondent that if they want to proceed against the petitioner to conduct a fresh enquiry they can do so by duly following the principles of natural justice and also the provisions of the Wakf Act. 16. In the result, both the revision petitions are allowed. No costs. Consequently connected miscellaneous petitions are closed.