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2004 Supreme(Mad) 921
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.P.SIVASUBRAMANIAM
O.M.S.Shaik Uduman Aalim Sahib - Appellant
Versus
The Tamil Nadu Wakf Board & Others - Respondents
Writ Petition No.23867 of 2002
Decided On : 21 July 2004
The judgment establishes that serious misconduct by a Muthawalli, as admitted by the Muthawalli and found by the Board, warrants removal under Section 64 of the Wakf Act 1995.
Headnote:
Certiorarified Mandamus - Wakf Board - Wakf Act 1995, Section 64 - Charges framed against Muthawalli, explanation given, and findings by Wakf Board - Court's analysis of charges, admissions, and Board's conclusions
Fact of the Case:
The petitioner seeks Certiorarified Mandamus to quash the Wakf Board's order dismissing the complaint against the Muthawalli. The Muthawalli faced charges of mismanagement and misappropriation of Wakf funds. The Board dismissed the complaint despite the Muthawalli's admissions.
Finding of the Court:
The Court found that the Muthawalli's admissions and the Board's findings indicated serious misconduct. The Court held that the Board's decision was unsustainable and directed the removal of the Muthawalli.
Issues: The issues revolved around the Muthawalli's alleged misconduct, the Board's dismissal of the complaint, and the petitioner's motive. The Court also considered the availability of an alternative remedy.
Ratio Decidendi: The Court held that the Muthawalli's admissions and the Board's findings of serious misconduct warranted removal. The Court also noted that the existence of an alternative remedy did not bar its jurisdiction in appropriate cases.
Final Decision: The Court allowed the Writ Petition, set aside the Board's orders, and directed the removal of the Muthawalli from office, appointing a new Muthawalli in accordance with the law.
The petitioner prays for Certiorarified Mandamus to call for the records of the first respondent's order dated 23.4.2002 made in item No.13 of 2002, to quash the same and to direct the first respondent Wakf Board to pass orders under section 64 of the Wakf Act 1995 pursuant to the admission of the charges made by the fourth respondent in his reply dated 7.2.2002 to the notice dated 21.12.2001.
2. The fourth respondent is functioning as the Muthawalli of Naina Mohamed Peria Kutba Pallivasal, Kadayanallur by virtue of the order of the Wakf Board dated 9.2.1985. There were certain specific complaints against him before the Wakf Board alleging mismanagement and misappropriation of the funds and properties belonging to the Wakf. An enquiry was ordered to be conducted on the basis of a report of the third respondent dated 27.10.2001 finding that there were sufficient materials to initiate action against the fourth respondent. Ten charges were framed against the fourth respondent in and by the show cause notice dated 21.12.2001.
3. The fourth respondent submitted his explanation what is described in the Writ Petition as admission of almost all the charges. Notice of enquiry was given to both the petitioner and the fourth respondent to be heard on 29.1.2002. Subsequently, an enquiry was conducted and the Wakf Board by its order dated 23.4.2002 dismissed the complaint after observing that the Board reprimands and warns the fourth respondent to regulate his activities in accordance with the Wakf Act and Rules in order to ensure that there was no further allegation as regards the style and management of the Wakf by the fourth respondent and that with the reprimand, the Board closed the matter and dismissed the petition.
4. Aggrieved by the said order, the petitioner has approached this court contending that the action of the Board in letting off the fourth respondent even in the face of his own admissions was not in the interest of Wakf.
5. To appreciate the said contention and the denials thereon by the respondents, it is necessary to extract the charges and the explanation given by the fourth respondent. The following are the charges framed against him.
1) That the 4th Respondent has been selling the unufructs of the coconut trees standing on the Wakf land directly without properly leasing it out.
2) That the 4th Respondent has been keeping thousand of Rupees as cash in his hand without opening Bank Accounts in the Name of the Wakf.
3) That he has not shown Friday Jumma Collections in the Statement of Account of the Mosque.
4) That he has failed to maintain Statement of accounts for Ramzan Nonbu Kanji contribution Receipts and expenses ect.,.
5) That he has been also acting as Pesh Imam and getting a sum of Rs.500/- towards salary from the income of the Wakf.
6) That he has constructed three rooms on the Wakf Land without obtaining prior permission from the Wakf Board.
7) That he has not brought the income from Quarbani goat skins into the Mosque Statement of accounts.
8) That he has not submitted the Statement of Account for the year from
1972-73 to 77-78, 1980-81 to 1983-84, 1991-92, 1994-95 and 1998-99 to the Tamil Nadu Wakf Board as required under Section 46 of the Wakf Act 1995.
9) That he has failed to submit Budget Estimate for the year 2001-2002 as required under Section 44 of the wakf Act.
10) That he had failed to remit contribution amounting to Rs.1,825/- as required under Section 72 of the Wakf Act 1995.
6. The gist of the reply by the fourth respondent to the charges is as follows, charge-wise:
(i) As the coconut trees are scattered and situated in the grave yard, no one comes forward to take the trees on lease. The practice is only to pluck coconuts in the presence of Jamathadars and sell the same in the market. The sales are accounted for. If the Board is of the opinion that the trees have to be leased in auction, he is ready to do so.
(ii) There is no income for the Wakf except the meagre income by the Jumma Hundi Collection
