The central legal point established is that the power to remove a Mutawalli lies with the Board, and delegation of powers must be evidenced by a written resolution. Inherent lack of jurisdiction can make a writ petition maintainable despite the availability of an alternative remedy.

VIKRAMADITYA PRASAD, J.

( 1 ) ANNEXURE -2, by which the petitioner, who was the Mutawalli of Shiekh Quadir Bakhsh Waqf Estate, Giridih, was removed from the post of Mutawalli on the ground of misappropriation of the income of the Waqf properties and in place of the petitioner, a Committee was constituted to work as Mutawalli, has been sought to be quashed in this writ petition. This order has been passed by the Chairman, Wakf Board, Patna, on 9-5-1998 and, according to the respondents, the same had been communicated by the Secretary of the Board.

( 2 ) THE main ground for seeking the quashing of the impugned order is that the order was without jurisdiction as the Chairman had no legal authority to pass the same.

( 3 ) THE aggrieved respondents appeared and contested the writ petition. According to the respondents, the petitioner has been rightly removed by the Chairman, who had the delegated power under Section 27 of the Wakf Act, 1995, and the order was communicated by the Secretary of the Board. The further contention raised by the learned counsel appearing on behalf of the aforesaid respondents is that the order was passed in the year 1998 and as the removal was made under Section 64 (1) (i) of the Act, the remedy available to the petitioner was to file an appeal under Section 64 (4) of the Act and by not availing this remedy, the petitioner had come to this Court directly and as such, the writ petition was not maintainable on the date of its filing (this writ petition was filed in the year 1999 at Patna High Court and this had been received on transfer after creation of the High Court of Jharkhand ).

( 4 ) ADMITTEDLY, the order has been passed by the Chairman ecause the impugned order at its bottom reads as follows :-"signature-ILLEGIBLE chairman wakf Board patna 9-5-1998. "the main question to be answered is whether the impugned order is sustainable in law or whether it is in excess of the jurisdiction vested in the Chairman under the Act.

( 5 ) SECTION 64 (1) reads as follows :-"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. . . . . . . . . . " from the aforesaid provision, it is clear that it is the Board, which has the power to remove the Mutuwalli. Then the question arose what is the Board. The Board is defined under Section 3 (c) of the Act as follows:"3 (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. " section 13 reads as follows :-"13. Incorporation. (1) With effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf there shall be established a Board of Wakfs under such name as may be specified in the notification. (2) Notwithstanding anything contained in sub-section (1), if the Shia Wakfs in any State constitute in number more than fifteen per cent of all the Wakfs in the State or if the income of the properties of the Shia Wakfs in the State constitutes more than fifteen per cent of the total income of properties of allthe Wakfs in the State, State Government may, by notification in the Official Gazette, establish a Board of Wakfs each for Sunni Wakfs and for Shia Wakfs under such names as may be specified in the notification. (3) The Board shall be a Body Corporate, having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued. "from the aforesaid provision, it is clear that the Board has to be constituted by the notification of the State Government to be notified in the Official Gazette. Thus, the Board itself is a creation of the State. Under section, the constitution of the Board has been defined along with