The central legal point established in the judgment is that the mandatory provision requiring a reasonable opportunity of showing cause before issuing recovery orders under the Waqf Act, 1995, must be complied with, and the failure to do so can lead to the quashing of the recovery citations.

U.C. Dhyani, J.

Since common facts and identical question of law is involved in the aforesaid writ petitions, therefore, all of them are being decided together by this common judgment and order for the sake of brevity and convenience.

2. Writ petition (M/S) No. 2870 of 2015 shall be the leading case.

3. By means of present writ petitions, the petitioners seek to issue a writ, order or direction in the nature of certiorari quashing the recovery citation passed by the respondent no. 2 against the petitioners.

4. It is the principal submission of learned counsel for the petitioners that no opportunity of hearing was granted to the petitioners before issuing the impugned recovery citations. Apart from this principal submission, learned counsel for the petitioners also contended that the petitioners are neither mutawalli nor connected in any way with the management of the wakf.

5. It will be useful to quote sub-section (3) of Section 33 of the Wakf Act, 1995, herein below for the convenience.

“33. Powers of inspection by Chief Executive Officer or persons authorised by him.—

(1)---------------

(2)----------------

(3) Where, after any such inspection, it appears that the concerned mutawalli or any officer or other employee who is or was working under him had misappropriated, misapplied or fraudulently retained, any money or other wakf property, or had incurred irregular, unauthorised or improper expenditure from the funds of the wakf, the Chief Executive Officer may, after giving the mutawalli or the person concerned a reasonable opportunity of showing cause why an order for the recovery of the amount or property, should not be passed against him and after considering such explanation, if any, as such person may furnish, determine the amount or the property, which has been misappropriated, misapplied or fraudulently retained, or the amount of the irregular, unauthorised or improper expenditure incurred by such person, and make an order directing such person to make payment of the amount so determined and to restore the said property to the wakf, within such time as may be specified in the order.”

[Emphasis supplied]

6. Even if it be conceded for the sake of arguments that the petitioners are mutawallis or connected with the management of the waqf, it is an admitted fact that no opportunity of hearing was granted to the petitioners before passing the recovery orders.

7. Sub-section (3) of Section 33 of the Waqf Act, 1995, clearly stipulates that a reasonable opportunity of showing cause, as to why an order for the recovery of the amount or property, should not be passed against him and after considering such explanation, if any, as such person may furnish, determine the amount ……………………………, and make an order directing such person to make payment of the amount so determined and to restore the said property to the waqf, within such time as may be specified in the order, is required to be given. It is a mandatory provision. As stated above, while passing the recovery orders and recovery citations against the petitioners, the respondents neither gave any notice nor any opportunity of hearing, nor served the recovery orders on the petitioners, although, recovery citations were served. This fact is under no dispute that the opportunity of hearing was not given to the petitioners before issuing coercive measures, which is in clear violation of the terms of the statute and, therefore, recovery citations must go.

8. Learned counsel for the respondents submitted that the petitioners have an alternate remedy to approach the civil court, even if the waqf tribunal has not been constituted under Section 83(9) of the Waqf Act, 1995. Learned counsel for the respondent no. 3 placed a judgment of Hon’ble Bombay High Court being Magnum Developers and others vs. Lal Shah Baba Dargah Trust and another, reported in 2015 SCC Onlne Bom 4796, in support of his contention.

9. The impugned recovery citations are, therefore, quashed. It will, however, be open to t