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2005 Supreme(Bom) 1138
IN THE HIGH COURT OF BOMBAY
Mohd. Minhajuddin
Versus
State of Maharashtra
Decided on : August 29, 2005
Headnote:Wakf Act, 1994 - Section 43 - Mutawalli - Right to appoint and removal of - Rests with family - Wakf Board cannot remove a Mutawalli without following mandatory provisions contained in Section 43(4) read with Section 45 of Act. - Right to appoint and removal of mutawalli rests with the family, that authority or power cannot be abdicated by the Board, by itself as in the present case, it is not demonstrated by the Board that it has followed the procedure to remove the deceased petitioner as mutawalli of the wakf by conducting enquiry against him as Section 43 begins with non obstante clause. Thus the Board can remove the mutawalli only on conducting an enquiry by levelling the charges against the mutawalli, otherwise not. Thus, if the deed of wakf makes a provision or procedure to appoint, remove the mutawalli, the appointment or removal has to be done in the manner provided by the deed and the Board definitely has the power to remove a mutawalli only in the matter provided under Sections 43, 44 and 45 of the Act.
Wakf Act, 1994 - Section 43 - Mutawalli of Wakf - Can be removed by the Wakf Board only on conducting an enquiry by levelling the charges against Mutawalli and not otherwise. - The Wakf Board can remove the Mutawalli only on conducting an enquiry by levelling the charges against the Mutawalli, otherwise not. Thus, if the deed of Wakf makes a provisions to appoint, remove the Mutawalli, the appointment or removal has to be done in the manner provided by the deed and the Board definitely has the power of remove a Mutawalli on the matter provided under Sections 43, 44 and 45 of the Act. The present case did not come under the purview of Section 43 of the Act. The Mohomedan Law does no recognize any right of inheritance of the Office of Mutawalli but the Office may become hereditary by custom in which case the custom should be followed. Looking to the various clauses of the application for registration of Wakf filed on 12th October, 1965 one thing is apparent that the Wakeef has recognized that the Mutawalli by appointed as per the procedure and custom from the members of the family. Therefore, considering the above aspects in right perspective, the impugned order passed by the Secretary and approved by the Administrator of the Wakf Board removing the deceased petitioner as Mutawalli cannot sustain as this order is passed in defiance of the mandatory provisions of Section 43 read with Sections 44 and 45 of the Act. Therefore removing of the deceased petitioner from Mutawalliship and further directing the Wakf Officer to act as such, goes contrary to Section 43 of the Act and the judgment in Mohd. Haji Haroon reported in AIR 1935 Bom 254. Both the orders are set aside by issuing a writ of certiorari .
( 2 ) DURING pendency of this Writ petition, the original writ petitioner Minhajuddin expired and his heirs and legal representatives, have filed an application for being substituted them as heirs and legal representatives and to bring them on record. That application was allowed by this Court on 28-1-2005. Now, the heirs of deceased petitioner are prosecuting this Petition.
( 3 ) THE short controversy involved in this Petition is whether the order dated 7th april, 1984 passed by the Secretary, marathwada Wakf Board, Aurangabad as approved by the Administrator can be called to be a legal and valid order of removal of deceased petitioner from the post of Mutawalli. The order purported to be passed u/s 43 of the wakf Act, 1994 (29 of 1994) (hereinafter referred to as "the Act" ). By the said order, the deceased petitioner who was working as "mutawalli" of the Wakf "kabristhan" his services were terminated forthwith. In normal circumstances, on the death of the original petitioner i. e. Mutawalli of the Wakf, the petition should have been dismissed as infructuous, but the deceased petitioner raised a contention that the post of Mutawalli of the Wakf in question being hereditary and the power of appointment of Mutawalli lies with the family members, the question has to be decided in order to avoid further litigation as the deceased was appointed as Mutawalli vide Resolution passed on 30th july, 1976 by the members of the family on account of death of the Mutawalli Janab Abdul quadar Mohammed Hussain.
( 4 ) BEFORE I proceed to record the submissions of the respective -Advocates, I would like to record that, this Petition filed under Articles 226 and 227 of the Constitution of India, 1950 (in short "the Constitution), was lodged in this Court on 24th April; 1989 and was circulated for urgent motion hearing on 12th September, 1989 on which date this Court issued notice to respondent no. 2. Then the petition was heard for motion hearing after service on the respondents on 31-1-1990 and as all the parties were duly represented by their respective Counsel, this Court upon hearing them, issued rule nisi and granted interim relief in terms of Prayer Clause (C ). It is rather unfortunate that till this date, the respondents herein have not bothered to file any return to contest the petition. I have to proceed to hear the petition which has seen the light of the day after 16 years to reach for final hearing.
( 5 ) HEARING of this Writ Petition commenced yesterday and continued further today. Miss Fatima Quazi Id. Adv. representing respondent no. 2 requested for time to file reply, which is refused. The petition is listed for final hearing initially on 20th July, 2001 and continued to appear on Board subsequently. Once the petition was dismissed by this court for non-appearance of the petitioner as at that time statement was made by the learned Adv. for the respondent no. 2 that the petitioner having died long back and his heirs are not brought on record, thus, it is abated. Accepting the statement, this Court on 15th April, 2004 dismissed the petition as abated, thereby discharging rule granted earlier and also vacating the interim relief granted on 31st march, 1990.
( 6 ) THEREAFTER the heirs of the petitioner have submitted an application for substitution and setting aside abatement which was allowed by this Court, at that time also the advocate for respondent no. 2 appeared, and petition stood restored; still the respondents have not cared to file reply to contest the proceedings. As such, at t
