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2014 DIGILAW 94 (KAR)

Syed Nizam Ali v. State Of Karnataka

2014-01-30

A.N.VENUGOPALA GOWDA

body2014
JUDGMENT 1. A short question raised in this writ petition is as to whether the Chief Executive Officer, Karnataka State Board of Wakfs (for short 'the Board') has the authority to suspend the petitioner? 2. The short facts are that, pursuant to an order dated 25.01.2010 of the Board, the petitioner was appointed as Vice Chairman of Hazrath Tipu Sultan Shaheed Wakf Development Committee, Ganjam, Srirangapatna. Complaints having been received against the petitioner and an audit report also having been received on 31.03.2012, showing certain deficiencies, the Chief Executive Officer of the Board/2nd respondent, ordered suspension of the petitioner with reference to the power under sub-S.(5) of S.64 of the Wakfs Act, 1995 (for short 'the Act'), subject to ratification by the Board. This writ petition was filed to quash a show cause notice, as at Annexure-A o'">d an Official Memorandum, as at Annexure-B, both issued on 19.04.2012 by the 2nd respondent. 3. Sri Vivek S. Reddy, learned advocate for the petitioner did not address any argument in support of the prayer for quashing of Annexure-A. Even otherwise, Annexure-A being a show cause notice and since, the petitioner has the opportunity to submit reply, which can be considered by the Board, I do not find any justification to quash the same. 4. Sri Vivek S. Reddy, vehemently contended that the suspension of the petitioner by the 2nd respondent, as per Annexure-B is illegal. He submitted that the 2nd respondent has no power to order the suspension, in as much as it is only the Board, which has been vested with such power and that there cannot be ratification of a wholly illegal action. 5. Smt. S.R. Anuradha, learned advocate, on the other hand, contended that Annexures - A and B having been ratified in the proceedings of 296th Board meeting held on 10th September 2012, vide Annexure-R2, the writ petition is untenable. She submitted that the Chairman, Vice Chairman and other members of the 3rd respondent held the office subject to the pleasure of the 1st respondent and therefore, the petitioner has no vested right and the 2nd respondent had no legal obligation to grant an opportunity of hearing to the petitioner before passing the order of suspension under S.64(5) of the Act. She submitted that the action of the 2nd respondent vide Annexures - A and B was on account of the gravity of the situation and in the interest of the 3rd respondent - institution. She submitted that though the normal clutches under S.64 of the Act is to remove the mutawalli of the institution, it is the person, committee or corporation for the time being managing or administering any Wakf or Wakf's property, can be brought under the meaning of the mutawalli under the Act and hence, no interference with the impugned action of the 2nd respondent Is warranted. 6. S.3 of the Act is with regard to definitions. The relevant definitions to decide this petition are: “3. Definitions: In this Act, unless the context otherwise requires,- (c) "Board" means a Board of Wakf established under sub-section (1), or as the case may be, under sub-section (2) of section 13 and shall include a common Wakf Board established under section 106; (d) "Chief Executive Officer" means the Chief Executive Officer appointed under sub-section (1) of section 23; (i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by the mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property; Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an Office bearer of such committee or corporation; [Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed: Provided also that in case a wakf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government.] (emphasis supplied) The petitioner being an office bearer / Vice Chairman of Hazrath Tippu Sultan Shaheed Wakf Development Committee, Ganjam, Srirangapatna, falls within the definition of S.3(i) of the Act. 7. 7. S.64 of the Act provides that the Board may remove a mutawalli from his office, if such mutawalli has done any of the acts as shown in clauses (a) to (k) therein. The said provision being relevant is reproduced herein below: "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 any other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of a 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. (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 mutawalli 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) to (8) xxxxxxxxx." (italicized for emphasis) 8. A plain reading of the extracted provision (supra), makes it clear that the suspension can be ordered by the Board until conclusion of the inquiry, where an inquiry under Sub-S.(3) is proposed or commenced. An order of suspension for a period exceeding ten days cannot be made except after giving to the person a reasonable opportunity of being heard against the proposed action in respect of which an inquiry under Sub-S.(3) is proposed or commenced. 9. In the instant case a show cause notice, as at Annexure-A was issued on 19.04.2012. In contravention of the proviso under Sub-S.(5) of S.64, the Official Memorandum dated 19.04.2012 as at Annexure-B was issued by the 2nd respondent, suspending the petitioner as per Sub-S.(5) of S.64 of the Act, subject to ratification by the Board. 10. The power to remove a mutawalli has been conferred on the Board as per S.64 of the Act. In contravention of the proviso under Sub-S.(5) of S.64, the Official Memorandum dated 19.04.2012 as at Annexure-B was issued by the 2nd respondent, suspending the petitioner as per Sub-S.(5) of S.64 of the Act, subject to ratification by the Board. 10. The power to remove a mutawalli has been conferred on the Board as per S.64 of the Act. It is the Board, which has been conferred with the power to order suspension for a period not exceeding ten days, that too after giving mutawalli or a person falling within the definition under S.3(i) of the Act, a reasonable opportunity of being heard against the proposed action i.e., when an inquiry under Sub-S.(3) is proposed or commenced and until the conclusion of the inquiry 11. Though, the Board in its 296th Meeting held on 10.09.2012, vide Subject No. 15(2) ratified the action taken against the petitioner vide Annexure - A and B, the action taken by the 2nd respondent with regard to suspension of the petitioner being void ab initio, the same cannot be legally ratified. Ratification is generally an act of principal with regard to a contract or an act done by the agent. The principles of ratification do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action taken without power has no legal validity, which is ab initio void and cannot be ratified. In the present case, it is the Board which has the power to order suspension under S.64(5) of the Act and not the Chief Executive Officer. There is no delegation of power to the Chief Executive Officer to take action against a person falling within the definition/meaning of 'mutawalli'. Therefore, neither the action taken by the Chief Executive Officer of the Board vide Annexure-B, nor the ratification by the Board on 10.09.2012 vide Annexure-R2 could be sustained. In the result, writ petition is allowed in part. Suspension of the petitioner by the 2nd respondent, vide Annexure-B is quashed. The petitioner is granted ten days' time to submit reply to the Board, in response to the show cause notice, as at Annexure-A. However it is made clear that this order would not come in the way of the Board taking action, if any, in accordance with law. No costs.