JUDGMENT
Srinivasan, J.
1. These appeals have been filed against the common judgment of Justice Mohan rendered in a batch of writ petitions challenging the validity of the orders of the Tamil Nadu Wakf Board appointing Executive Officers to administer the day-to-day affairs of certain Wakfs in Tamil Nadu. In one case, the Wakf Board besides appointing an Executive Officer chose to appoint a committee consisting of five persons to fxwork along with the Muthawalli of the Wakf and the same is challenged by the persons affected. The learned Judge dismissed all the Writ Petitions holding that the Wakf Board had power under S. 15 of the Wakf Act, 1954 (Act XXIX of 1954) (hereinafter referred to as the Act) to appoint an Executive Officer or/and a committee to function along with the Muthawalli of the Wakf for the purpose of better administration of the Wakf.
2. The aggrieved appellants contend that the provisions of the Act do not enable the Wakf Board to appoint either an Executive Officer or a committee when there is a Muthawalli in management of the wakf. In all these cases, the orders of the Wakf Board do not set out any reason for the appointment of the Executive Officer; nor do they define the exact position of the Executive Officer, whether he is subordinate to the Muthawalli or otherwise. The functions of the Executive Officer have not also been defined by any of the orders. As regards the committee appointed in one case, as stated earlier, the order appointing the committee states that it is for the better administration and management of the concerned wakf. It is common ground that in none of these cases, any proceeding has been taken against the Muthawalli in management. None of the orders under challenge purport to remove the Muthawalli from office. Consequently, the question which arises for consideration is whether the Wakf Board is empowered under the provisions of the Act to appoint an Executive Officer or a committee for managing the affairs of the Wakf without removing the Muthawalli or taking any proceedings against him.
3. It is necessary at this stage to refer to the relevant provisions of the Act. Section 3(f) of the Act defines a ‘muthawalli’ as a “person” appointed either verbally or under any deed or instrument by a competent authority to be the muthawalli or wakf and includes any naib-muthawalli, khadim, mejawar, sajjadanishin, amin, or other person appointed by a muthawalli to perform the duties of a muthawalli and, save as otherwise provided in this Act, any person or Committee for the time being managing or administering any wakf property as such”. Section 15 of the Act sets out the functions of the Board. Clause (1) of S. 15 of the Act reads thus : –
“(1) Subject to any rules that may be made under this Act, the general superintendence of all wakfs in a State shall vest in the Board established for the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such Wakfs were created or intended :
Provided that in exercising its powers under this Act in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the Muslim law.”
The relevant portions of Cl. (2) are as follows :
“(2) without prejudice to the generality of the foregoing power, the functions of the Board shall be-
(a) ………………………….
(b) to ensure that the income and other property of wakfs are applied to the objects and for the purposes for which such wakfs were created or intended;
(c) to give directions for the administration of wakfs;
(d) to settle schemes of management for wakf;
Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard;
(3) to direct : –
(i) to utilization of the surplus income of a wakf consistently with the objects of the wakf;
(ii) in what manner the income of a wakf, the objects of which are not evident from any written instrument shall be utilized;
(iii) in any case where any object of a wakf has ceased to exist or has become incapable of achievement, that so much of the income of the wakf as was previously applied to that object shall be applied to any other object which shall be similar; or as nearly as practicable similar, to the original object;
Provided that no direction shall be given under this clause without giving the parties affected an opportunity of being heard.
Explanation :- For the purposes of this clause, the powers of the Board shall be exercised, –
(i) in the case of a Sunni Wakf, by the Sunni members of the Board only; and
(ii) in the case of a Shia Wakf, by Shia members of the Board only;
Provided that where having regard to the number of the Sunni or Shia members in the Board and other circumstances, it appears to the Board that its power should not be exercised by such members only, it may coopt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this clause,
(f) ………………..
(g) to appoint and remove muttawallis in accordance with the provisions of this act;
(h) to (n) ……………………..
(o) generally do all such acts as may be necessary for the due control, maintenance and administration of wakfs.”
The other portions of the section are omitted as they are not relevant for the purpose of this case.
4. Section 42 of the Act deals with the power of the Board to appoint mutawallis in certain cases. It reads thus :
“When there is a vacancy in the office of the muttawalli of a wakf and there is no one to be appointed under the terms of the deed of wakf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.”
Section 43 provides for removal of mutawallis. Clauses (1) and (2) are extracted hereunder :-
(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 S. 41; or
(b) has been convicted of an offence of criminal breach of trust or any other offence involving moral turpitude; or
(c) misappropriates or deals improperly with the properties of wakf; or
(d) is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of a mutawalli; or
(e) has failed to pay, without reasonable excuse, for two consequtive years the contribution payable by him under S. 46.
(2) Where a committee is appointed by the Board for any person or authority not being a Court of law to act as a mutawalli for managing or administering any wakf property and the committee, in the opinion of the Board, is unable to perform, or has persistently made default in the performance of, the duty imposed on it by or under this Act or has exceeded or abused its powers, the Board may supersede the committee and appoint any other person or, committee to act as the mutawalli of the wakf property.”
Section 43-A provides for assumption of direct management of certain wakfs by the Board, which reads as follows : –
“(1) Where no suitable person is available for appointment as a mutawalli of a wakf under S. 42 or under sub-sec. (2) of S. 43, the Board may, by notification in the Official Gazette, assume direct management of the Wakf for such period or periods not exceeding in the aggregate five years, as may be specified in the notification.
(2) Notwithstanding anything contained in S. 33, the accounts of every wakf under the direct management of the Board shall be audited annually by an auditor to be appointed by the Board, from among chartered accountants in practice, within the meaning of the Chartered Accountants Act, 1949″.
Sections 44 and 45 provide for an enquiry at the instance of any person interested with regard to the administration of the wakf, if there is any mismanagement. They are as follows : –
“44. Application for inquiry : – Any person interested in a wakf may make an application to the Board supported by an affidavit to institute an inquiry relating to the administration of the wakf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, it shall take such action thereon as it thinks fit.”
“45. Inquiry by the Board. –
(1) the board may, either on an application received under S. 44 or on its own motion :
(a) hold an enquiry in such manner as may be prescribed; or
(b) authorise any person in this behalf to hold an inquiry, into any matter relating to a wakf and take such action as it thinks fit.
(2) For the purposes of any inquiry under this Act, the Board or any person authorised by it in this behalf shall have the same powers as are vested in a Civil Court under the Civil P.C., 1908 for enforcing the attendence of witnesses and production of documents.”
5. It may be seen that there is no express provision authorising the Board to appoint an Executive Officer or a Committee to manage a wakf, while there are provisions to take proceedings against erring mutawallis as well as to remove and appoint mutawallis. The language of S. 15(2)(g) empowering the Board to appoint and remove mutawallis, is quite significant inasmuch as it directs that such appointment and removal should be in
Name of the E. O.
1. Janab B. Shahul Hameed
2. Janab Alawdeen Khan
3. Janab A. Basheer
4. Janab A. Ashin
5. Janab N. Sirajudeen, Jr. Asst. A.3 of T. N. W. B.
6. Janab S. Zainulabuddin
accordance with the provisions of the Act. The Board has necessarily to resort to the provisions under Ss. 42 and 43 of the Act for the said purpose.
6. Mr. Habibulla Badsha appearing for the appellant, in W.A, No. 545 of 1980 contended that the Board has no power, to interfere with the management of a wakf by the mutawalli and that the appointment of an Executive Officer to administer the day-to-day affairs of the wakf along with the mutawalli would definitely constitute interference with the management by the mutawalli. The impunged order of the Wakf Board in the said case is passed with reference to six wakfs constituted in different places for which six different Executive Officers are appointed by the Board by a single order. The order is dt. 3-4-1979 and it runs as follows : –
“Under S. 15(l) of the Wakf Act, 1954, the following are appointed as Executive Officers for the Wakfs mentioned against each to administer the day-to-day affairs of the Wakf along with muthawalli-
They shall be paid pay and allowances in the scale of Rs. 350-10-420-15-600. Entire expenditure such as salary, T.A., etc., shall be met from the concerned wakf funds.”
This is the form in which the other orders are also passed by the Wakf Board. It can be seen that the order does not set out the reasons for the decision of the Wakf Board to appoint an Executive Officer. The only provision resorted to in the order is S. 15(1) of the Act which is a general provision conferring power on the Board to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered. Even though the duties of the Executive Officer were not
Name of Wakf & Village
Jaminmasjid, Tuticorin
Kalick Deenar Baithulmal, Kottar
Killai Durgah
Mahanimume Hasanath Madarasa, Vijayapuram, Tiruvarur.
Siddique Sarai, Madras
Athankarai Pallivasal, Tirunelveli
defined by the Board, certain directions were given by a subsequent order dt. 28-4-1979 with regard to the Undials. By the said order, the Board directed that the Undials should be sealed with the seals of both Executive Officer and Muthawalli and that they should be opened in the presence of the Executive Officer and the coin denomination statement should be prepared and attested by both the Muthawalli and Executive Officer. The said order also directed the Executive Officer to maintain accounts. Mr. Badsha contended that the general provisions of S. 15(l) of the Act would not enable the Board to take such a drastic step as to appoint an Executive Officer and deprive the muthawalli of his right to administer and manage the wakf. In support of his contention, learned counsel relied on the decision in Andhra Pradesh Wakf Board v. Mohd Hidayatullah, . In that case, a Managing Committee was constituted by the Muthawalli with the assistance of the Wakf Board to help him in looking after the affairs of the Wakf in the year 1962. In 1966, the Muthawalli filed an application for appointing his son as Muthawalli as he had become very old and not capable of Managing the Wakf. The Wakf Board recognised the son as the Muthawalli by its letter dt. 17-3-1967. The new Muthawalli dissolved the Managing Committee and wanted it to return all the records and he also requested the Board to direct the Secretary of the Committee to hand over the records to him. The Board cancelled the dissolution of the Committee and gave extension to the Committee until further orders. Challenging the said action of the Board, the Muthawalli filed a writ petition, which was subsequently withdrawn. Later, the Board directed the Muthawalli to hand over charge of certain articles to the Managing Committee. The validity of the said direction of the Board was challenged by the Muthawalli in a Writ Petition which was allowed by a single Judge. On appeal, the Division Bench confirmed the decision of the single Judge. After extracting the relevant provisions of the Act, the Division Bench observes as follows : –
“The first question is whether the so-called managing committee has been properly constituted. The Managing Committee, whether it is constituted by the previous muthawalli with the permission of the Board
or it was constituted by the Board, can no more continue. After having recognised the petitioner as muthawalli, he can manage the properties of the wakf. The only power which the Wakf Board has is to appoint a supervisory committee under S. 16 of the Act. The learned Advocate for the Wakf Board could not invite our attention to any provision of the law by or under which the Wakf Board can appoint a Managing Committee even where a muthawalli is recognised by the Board without removing them. Both the committee as well as the mutawalli cannot simultaneously function is conceded. What then remains to be seen is whether the Managing Committee which was continued by the Wakf Board even after the appointment of mutawalli, was valid. In the absence of any express provision authorising the Board to appoint the managing committee in such a case, we do not think that after the mutawalli was appointed, the managing committee could have continued. The order continuing the managing committee therefore is without jurisdiction and is ineffective. The managing committee therefore has to go.
The question then is whether the Board can direct the mutawalli to hand over the records either to the committee or to the Board. We have already seen that it is only in a case where the muthawalli has been removed by a proper order or a muthawalli cannot be appointed in certain circumstances that the Board can either under S. 43(5) or under S. 43 A direct the records to be handed over. As long as the muthawalli is effectively working in office and as long as there are no other proceedings pending against him, we do not think the Board has any power to direct the muthawalli to hand over the record to the committee or to the Board. No proceedings or whatever kind are pending against the muthawalli. The impunged order therefore directing the muthawalli to hand over the record is not in accordance with law and cannot be sustained.
The Wakf Board, without assuming direct management of the wakf or removing the muthawalli, cannot keep back in its custody or possession the records relating to the wakf. It has to hand over the entire property belonging to the wakf to the muthawalli. It is true that the board has special powers of supervision directly or indirectly through the committee constituted under S. 16 of the Act. But that does not mean that the Board can direct the muthawalli to hand over the entire property to the managing committee or to the Board without having any recourse to S. 43 or S. 43-A”.
7. Mr. Badsha then relied upon the decision of a single Judge of this Court in Dr. Mohamed Hashim v. Tamil Nadu State Wakf Board, (1980) 1 Mad LJ 235. In that case, the Wakf Board had initiated proceedings for removal of a muthawalli and during the pendency of the proceedings, the Board passed an order taking over the management and administration of the Wakf directly as a temporary measure. The said order was challenged by the muthawalli. The learned Judge allowed the writ petition holding that there is no provision in the Act enabling the Board to assume direct management of the wakf pending an application for removal of a muthawalli or for framing a scheme in relation to the Wakf. The learned Judge observed as follows : –
“S. 15(l) dealing with the functions of the Boards states that the general superintendence of all Wakfs in a State shall vest in the Board and it shall be the duty of the Board so to exercise its powers under the Act as to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and the purposes for which such Wakfs were created or intended. S. 15(2)(o) provides that without prejudice to the above general power the function of the Board shall be generally to do all such acts, as may be necessary for the due control, maintenance and administration of wakfs. Section 45 of the Act only vests a jurisdiction in the Board to enquire into any matter relating to the wakf and to take such action as it thinks fit. I have no doubt that neither S. 15 nor S. 45 enables the Wakf Board to dispossess a mutawalli or take over the administration of a mosque from the muthawalli pending an enquiry into an application for removal of the muthavalli or for framing of a scheme. The Wakf Board has no inherent power and if it seeks to exercise any power it must be in a position to lay its hands to some specific provision in the Wakf Act as being a creation of the Wakf Act the powers and jurisdiction are restricted to those that are found in the enactment itself. The muthavalli is entitled to be in possession and management pending disposal of an application for his removal. If during the enquiry into an application for removal he is to be dispossessed or the management of the mosque is to be taken away, specific provision conferring a power on the enquiring authority is absolutely essential. In fact, the matter is not res integra in view of the decision reported in Mohammed Shareef v. Superintendent (Wakf), , Justice Ismail, as he then was, had occasion to consider the scope of the powers of the Board under S. 15. After referring to the similar provisions contained in the Hindu Religious and Charitable Endowments Act and after considering the provisions of the Wakf Act the learned Judge held that the Wakf Board cannot issue notice to the tenants of the Wakf properties not to pay rent to the muthavalli but to pay it to the Board on the ground that action to remove the muthavalli was taken on the ground that he had failed to file the accounts to the Board or failed to pay the contribution to the Board. In fact, the learned Judge pointed out that there is a lacuna in the Act and a need for a legislative provision vesting jurisdiction in the Board to make such interim appointments or interim suspension of the muthavalli, but the provisions as they stand do not enable the Wakf Board to dispossess a muthavalli pending enquiry into an application for removal of that person. The ratio is, so long as a final order removing a muthawalli is not made, he is entitled to exercise his powers as such muthawalli and, therefore, no interim disposition can be ordered pending enquiry into the application. The same learned Judge has considered the question again in the decision reported in the Palani Muslim Dharmapuripalana Sangam. v. Tamil Nadu Wakf Board, (1975) 1 Mad LJ 201 and similar view has also been expressed in this judgment.
Section 42 deals with a case of vacancy in the office of Muthawalli or where the right of any person to act as muthawalli is disputed and the right of the Board in those cases to appoint any person to act as muthawalli for such period and on such condition as it may think fit. Certainly, this provision does not enable the board to appoint any person to act as a muthawalli pending an application for removal because in such a case there is no question of vacancy or a dispute as to the right of the muthawalli. The dispute referred to in the section can only be a dispute between two persons claiming to be muthawalli and in a case where there is no dispute about the right of a person to be the muthawalli, but he is sought to be removed on the ground of certain commissions and omissions, S. 42 could not be invoked.
Section 43-A enables the Board to assume management of the Wakf for such period or periods not exceeding the aggregate five years in cases where no suitable person is available for appointment as a muthavalli of a wakf under S. 42 or under sub-sec. (2) of S. 43. We have already seen that the power to appoint a muthavalli under S. 42 arises in a case where there is a vacancy in the office of the muthavalli or where there is a dispute relating to muthavalliship. In such cases, the Board has power to appoint a muthavalli under S. 42, but if the Board could not find a suitable person for appointment to act as muthavalli under S. 42, S. 43-A enables the Board to assume management directly to itself. Similarly, S. 43(2) provides that where a committee appointed by the Board to act as a muthavalli for managing or administering wakf property is unable to perform or has made default in performance of the duty imposed on it, the Board may supersede the committee and appoint any other person or committee to act as muthavalli of the wakf property. If in such a case the Board, is not able to find any other suitable person to act as a muthavalli then S. 43-A enables the Board to assume direct management of the wakf or its properties. Therefore, the condition precedent for the applicability of S. 43-A is the vacancy in the office of a muthavalli or a dispute relating to the muthavalliship or the committee or person appointed by the Wakf Board under S. 42 not being able to function and the Board is not able to find any other suitable person to act as a muthavalli. It is not applicable to a case where there is no dispute as to the right of the person to be a muthavalli, but only he is sought to be removed on the ground of mismanagement or other acts of commissions and omissions.”
8. Mr. Badsha also relied upon the decision of Ismail, J., (as he then was) in T. E. Mohammed Shareef v. Superintendent (Wakfs) Central Zone, . It is not necessary for us to deal with this decision as it has been referred to in Dr. Mohammed Hashim v. Tamil Nadu State Wakf Board, (1980) 1 Mad LJ 235 a passage from which we had already extracted.
9. Mr. V. Sridevan, appearing for the appellants in W. A. Nos. 622 and 628 of 1980 while adopting the arguments of Mr. Habibulla Badsha, added that even if the Board could be said to have the power of appointing an Executive Officer, such power should be exercised only if there is any necessity therefor. According to learned counsel, the Board should consider whether the income of the particular wakf would be sufficient to bear an expenditure which may be consequent to the appointment of an Executive Officer. Learned counsel also contended that the Board should issue notice to the muthawalli and hold an enquiry wherther the appointment of Executive Officer is necessary or not and unless such a procedure is adopted the appointment would be invalid. He submitted that in none of these cases, there has been any complaint against the management by the muthawallis concerned. He pointed out that in the two cases in which he is appearing, viz., W.A. Nos. 622 and 628 of 1980, the income of the Wakf is very meagre and it cannot afford to pay the salary of an Executive Officer or bear the consequential expenses. Learned counsel went to the extent of contending that the appointment of the Executive Officers in these two cases is mala fide.
10. Mr. M. Kalyanasundaram appearing for the appellant in W.A. 696 of 1980 contended that the only provision under which the Board could claim to derive a power of appointing an Executive Officer or a committee if at all would be S. 15(2)(o) of the Act. According to him, S. 15(2)(o) Authorises the Board to do all such acts generally as may be necessary for due control, maintenance and administration of wakfs. Learned counsel would point out similar language in S. 15(l) of the Act. According to learned counsel, these general words should be construed ejusdem generis with the particular powers conferred under S. 15(2)(a) to (n). Learned counsel contends that by no stretch of imagination, S. 15(2)(o) could be interpreted as conferring an independent power on the Board to do something which goes outside the scope of the powers conferred under sub-cls. (a) to (n) of S. 15(2). For this purpose, learned counsel relies upon the decision of the Supreme Court in Amar Singhji v. State of Rajasthan, , wherein the true scope of the rule of ejusdem generis is set out thus : –
“The true scope of the rule of ejusdem generis is that words of a general nature following specific and particular words should be construed as limited to things which are of the same nature as those specified and not its reverse, that specific words which precede are controlled by the general words which follow”.
In that case, the Supreme Court had to interpret the word ‘Jagir’ in Art. 31-A of the Constitution of India.
11. We do not think that the said decision would compel us to apply the rule of ejusdem generis to Cl. (o) of S. 15(2). Normally the rule of ejusdem generis is applied to words in the same clause. When a general word follows, particular and specific words of the same nature, then the general word takes its meaning from the particular words and is presumed to be restricted to the same genus as those Words. Unless there is a genus or category, there is no room for the application of the ejusdem generis doctrine. We are unable to take the view that the said doctrine would apply to S. 15(2)(o) of the Act. We consider that S. 15(2)(o) is a residuary clause conferring powers on the Wakf Board to do all such acts as may be incidentally necessary for the purpose of ensuring that the Wakfs are properly controlled, maintained and administered.
12. Learned counsel then referred to the fact that in this case, there was a scheme settled by this Court in C. S. No. 116 of 1909 by a decree dt. 11-8-1910. At this stage it is necessary to point out that the two appeals W.A. Nos. 692 of 1980 and 696 of 1980 relate to the same durgah viz., Hazarath Syed Moosa Sha Khadiri Durgah at Mount Road, Madras, With reference to this durgah, the Board passed an order on 21-4-1979 appointing an Executive Officer to administer the day-to-day affairs of the Wakf. Again, on 27-4-1979 the Board passed another order appointing a committee of five persons named therein, to work along with the muthawalli for the better administration and management of the durgah. In the latter order, the Board refers to its resolution Item No. 725 dt. 19-4-1979 and says that in the said resolution, the Board decided to appoint a committee as well as an Executive Officer, though the resolution dt. 19-4-1979 has not been referred to in the order dt. 21-4-1979 appointing an Executive Officer. While the appellant in W.A. No. 696 of 1980 challenges the appointment of the Executive Officer as well as the committee, the appellant in W.A. No. 692 of 1980 confines his challenge to the appointment of the committee. It is common ground that the durgah involved in the two appeals was originally managed by one Syed Aminuddin, who had two sons, Syed Ismail and Syed Ghulam Dasthagir. The heirs of the said two sons were parties in C.S. No. 116 of 1909 where in the decree provided that the two branches were entitled to perform the duties of Majwar (Superintendent) of the Durgah of the Saint Hazar Syed Qadiri situated in Mount Road, Madras, in turns and they were entitled to share the collections from the Hundi box in equal moieties. It must be pointed out that the decree declared that the management should be in turns. There was actually no provision prescribing the turns. It is however admitted by all the parties concerned that the members of the two branches have been managing the durgah in turns. It is stated that at present there are 22 members who are in management of the durgah. There is no dispute with regard to the number of days during which each member is entitled to manage. It is stated that one of the members of the branch of Syed Gulam Dasthagir was appointed as muthawalli and on his death, his son Syed Aminuddin (3rd respondent in W.A 696 of 1980) was appointed by the Board as muthawalli in 1968. It is contended by learned counsel for the appellants in the two appeals that the muthawalli appointed by the Board is only for the purpose of carrying out the directions of the Board, but all the twenty two sharers are muthawallis as defined by the Act. It is contended that the order of the Board appointing an Executive Officer and a committee of management, violates the provisions of the scheme decree in C.S. No. 116 of 1909 and therefore, not valid. Learned counsel submitted that when there is a decree framed by Civil Court containing a scheme of management, that should be followed by the Wakf Board and cannot be ignored. For this purpose, reliance is placed on the decision in Palani Muslim Dharmaparipalanasangam v. Wakf Board, (1975) 1 Mad LJ 201. In that case, Ismail, J., (as he then was) has taken the view that so long as a decree of a Civil Court is in existence, the Wakf Board has no jurisdiction, to ignore it and to act contrary to the terms of the scheme in the purported exercise of its powers under S. 15 of the Act. The learned Judge has also pointed out that the only course open to the Wakf Board in such cases is to take proceedings for modifying the scheme or settling a new scheme.
13. Learned Counsel then urged that the order of the Wakf Board is vitiated by mala fides as all the five persons of the committee nominated belonged to only one branch, that is the branch of Syed Ghulam Dasthagir and competent persons in the other branch were completely ignored. It is also contended that there was no enquiry by the Board before the passing of the order and that the resolution of the board dt. 19-4-1979 was not communicated to the parties.
14. Mr. K. Yamunan, appearing for the appellants in W.A. No. 692 of 1980 contended that a committee could be appointed by the Board only under S. 43 of the Act after removing the muthawalli and that when a muthawalli is functioning, the board has no power to appoint anybody to assist the muthawalli. Learned counsel also submitted that the power under S. 43 could be exercised only after due enquiry.
15. On the side of the respondents, Mr. M. R. Narayanaswamy senior counsel appearing in W.A. Nos. 692 and 697 of 1980 argued that the Board has power to appoint a committee of management by virtue of the provisions of Ss. 15(l) and 15(2)(o) of the Act. According to learned counsel, the wakf Board had the authority to associate any person with the muthawalli to manage the Wakf in the proper manner. Learned counsel submitted that when a power is conferred under S. 15(2) of the Act, to generally do all such acts as may be necessary for the due control, maintenance and administration of wakfs without any specific restriction or stipulation on the said power, it would by necessary implication empower the Board to do anything which the Board considers necessary for the purpose of controlling and administering the wakf. Learned counsel invokes the doctrine of implied power which is elucidated by Maxwell on the Interpretation of Statutes (11th Edition page350) as follows : –
“Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quotue coneessa esse videntur, sine quibus jurisdictio explicari non potuit. Thus, an act which empowered justice to require persons to take an oath as special constables, and gave them jurisdiction to inquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those purposes. Otherwise, the jurisdiction could not be effectually exercised.”
A similar passage in Herbert Broom’s Legal Maxims (10th Edition) pages 312 and 313 reads thus : –
” “Upon a principle similar to that which has been thus briefly considered, it is a rule that, when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command : quando eliquid manxdatur mandatur et onme per quod pervenitur ad illud. Thus when a statute gives a justice of the peace jurisdiction over an offence, it impliedly gives him power to apprehend forthwith (instead of merely summoning) any person charged with such offence. So, constables, whose duty it is to see the peace kept, may, when necessary, command the assistance of others. In like manner, the sheriff is authorised to take the posse comitatus, or power of the country, to help him in excuting a writ of execution, and every one is bound to assist him when required so to do; and, by analogy, the persons named in a writ of rebellion, and charged with the execution of it, have a right, at their discretion, to require the assistance of any of the liege subjects of the Crown to aid in the execution of the Writ.”
Learned counsel also referred to a similar passage in Bindhra’s “Interpretation of Statutes” (7th Edition) at pages 725 and 726.
16. The next contention of learned counsel was based on the facts of the case. It is pointed out by learned counsel that the first appellant in W.A. No. 696 of 1980 filed a petition before the Wakf Board in 1975 under S. 44 of the Act for enquiring into the affairs of the Wakf and passing an order removing the mutawalli and appointing a committee of management to administer and manage the affairs of the Wakf. The said application was numbered as W.A. 4/75 on the file of the Wakf Board. Learned counsel also pointed out that another application was filed by the fourth respondent in W.A. No. 696 of 1980 which was taken on file by the Board as W.A. 32/77 in which a similar prayer was made. Learned counsel submitted that the Board acted only in pursuance of the said applications and appointed a committee of five persons to work along with the mutawalli for the better administration and management of the wakf. Learned counsel pointed out that under S. 44 of the Act, the Board may be requested to take such action as it thinks fit when the Board is satisfied that there are reasonable grounds for believing that the affairs of the Wakf are mismanaged. It is also submitted by learned counsel that during the pendency of the wirt petition when the petitioners therein sought for a stay, this Court passed an order permitting the committee appointed by the Board to function along with petitioners 1 and 2 in Writ Petition and that since then, the management of the Wakf has been properly carried out by those persons without any complaint from anybody. The same arrangement is said to be continued even during the pendency of the Writ Appeal. Learned counsel also referred to the fact that the durgah was in a dilapidated condition prior to the appointment of the committee and that the committee had renovated the durgah and restored its dignity and prestige. We are of the opinion that the aforesaid facts would not in any way be relevant for deciding the question whether the Board has power under the provisions of the Act to appoint an Executive Officer or a committee when a mutawalli is in management of the Wakf. However, we must point out that it is an admitted fact that there was no enquiry by the Board in the two applications filed under S. 44 of the Act. The Board had only passed an order rather arbitrarily appointing a committee and that too consisting of members of one branch only. We do not propose to go into the question of mala fides as it is unnecessary for the purpose of deciding the appeals.
17. Mr. Rasheed appearing for the Wakf Board submitted that the Board decided as a matter of policy to appoint Executive Officers for the management of such wakfs which had an annual income of more than Rs. 60,000/-and that Executive Officers were appointed only for 23 wakfs in the whole of the State of Tamil Nadu. Learned counsel for the Board submitted that the powers of mutawalli are not in any way curtailed by the Executive Officer who is to act only along with the mutawalli. Learned counsel relied upon a passage in Interpretation of Statutes by Chakravarthi (1978 Edition) and contended that whenever a power is given to a public body to do a particular thing then all incidental powers to carry out the same are impliedly granted. We do not think that the income of any wakf has any relevance to the powers of the Board under the Act. Unless the provisions of the Act authorise the Board to appoint an Executive Officer or the Committee, the Board cannot choose to appoint such persons just because the income of the particular wakf is large. Learned counsel for the Board is unable to point out any specific provisions in the Act empowering the Board to appoint committee or Executive Officer when the mutwalli is in management of the wakf. Learned counsel seeks asylum in S. 15 of the Act. Reliance is placed on the decision of a single Judge in T. S. Yusuf v. Tamil Nadu Wakf Board, . In that case, the Wakf Board filed an application before the trial Court for transfer of the absolute control of the Wakf and its property for the day-to-day management, including the power to appoint muthavallis with reference to a wakf which was governed by a scheme framed by the Civil Court, under which the trustees had been appointed for the administration of the Wakf. The said application of the Wakf Board was resisted on the ground that the Wakf was not one as defined under the Wakf Act and that there was no necessity for interfering with the provision of the scheme. The trial Court held that the suit wakf was a public wakf within the meaning of the Act and that the Board was entitled to take control and management of the wakf under S. 15 of the Act. The trustees filed a Civil Revision Petition against the decision of the trial Court and Venugopal, J., while dismissing the Revision Petition observed as follows : –
“In the instant case the Wakf Board does not seek to substitute itself in the place of the Civil Court or take upon itself the authorship of the scheme. The Wakf Board merely wanted a direction that as the power of general superintendence and control has vested with them under S. I5 of the Act, they. should be permitted to administer the Wakf and manage the Wakf properties in pursuance of the scheme instead of approaching the Court from time to time in routine matters such as management, appointment of trustees etc. As the power of administration vested with the Board under S. 15 includes the power to appoint “muthawallis” to manage and administer the Wakf property, the Wakf Board has certainly the power to appoint trustees in accordance with the scheme framed by the Court. As per the scheme framed by the Court, the Board of Trustees should consist of five members, one of whom will be hereditary trustee, and the other to be elected by the pangolins and the remaining three trustees to be nominated by the Court from among the Muslim residents of Tiruchi Municipality”.
We do not see how this decision helps the Wakf Board in the present case. The learned Judge in that case has recognised the principle that the Wakf Board should act in accordance with the terms of the scheme framed by the Civil Court.
18. Learned counsel for the Board also relies on the decision in Gulamali v. Secy., Karnataka Board of Wakfs, . That was a case in which the Karnataka Wakf Board appointed an ad hoc committee in exercise of its power under S. 42 of the Act, pending contemplated amendment of the scheme framed earlier by the Board. In that case, the Board had assumed direct management of the Wakf under S. 43-A of the Act. Though a period of five years had elapsed after the date of assumption of direct management, the Board did not choose to appoint a committee of mutawallis as per the provisions of the scheme framed for the said wakf. The Karnataka High Court held that the Board had no power to appoint an ad hoc committee and there was no option left to the Board to overcome the provisions of the scheme. The Court issued a Writ of Mandamus to the Board to appoint a committee of mutawallis in accordance with the provisions of the scheme and also quashed the order appointing an ad hoc committee. Far from helping the Board, this decision is really one against the contentions of learned counsel for the Board.
19. Mr. Musthafa appearing for the Board in W.A. No. 622 of 1980 referred to an unreported decision of a Division Bench of this Court in N. A. Azeezullah v. Tamil Nadu Wakf Board, (W.A. No. 191 of 1980 Order dt. 16-6-1985). That is a case where the term of office of the managing committee appointed under a scheme framed by the Board having expired, the Board took over direct management and appointed an Executive Officer as the Board found that there were no suitable persons available to form a committee immediately. Such appointment of the Executive Officer was challenged by a person who was appointed as a trustee by the committee whose term had expired and rightly this Court dismissed the writ petition well as the writ appeal. The said decision will not in any way help the Board in the present case. Mr. Musthafa also referred to the dismissal of Writ Appeal No. 122 of 1982 against one of the writ petitions disposed of by the common order under appeal. That writ appeal was rejected in the admission stage and that cannot have any binding force on the present appellants.
20. After considering the arguments of learned counsel on both sides, we are of the opinion that the provisions of the Act do not empower the Wakf Board to appoint either a committee or an Executive Officer to manage the Wakf when a mutawalli is in charge of the management and administration of the Wakf. In our view, neither S. 15(l) nor S. 15(2)(o) authorises the Board to take a drastic step, which will virtually eliminate the muthawalli from the management of Wakf. Though it is contended by the respondents that the Executive Officer and the committee appointed by the Board are only to function along with the mutawalli and not as superior officers to him, it is quite evident that the mutawalli’s power of taking decisions with regard to the management of wakf has been taken away. Whether the Executive Officer and the committee are superior to the Mutawalli or not, the mutawalli has to consult them for each and every thing as he is made to work along with them by the order of the Board. Interposition of the Executive Officer or the committee of management will certainly tantamount to deprivation of the mutawalli of his powers of management. We agree with the decision of the Andhra Pradesh High Court in Andhra Pradesh Wakf Board v. Mohd. Hidayatullah, referred to earlier that the Board has no power to interfere with the management of the mutawalli as long as there are no proceedings pending against him. We also approve of the reasoning of Ismail, J. (as he then was) in Mohammed Shareef v. Superintendent (Wakf), to the similar effect.
21. We cannot agree with the contention that the doctrine of implied powers would apply to this case and the board had the power of appointing an Executive Officer or managing committee. The doctrine of implied powers authorises only the authority concerned to do such acts which may incidentally be necessary. If the power specifically conferred on the authority concerned cannot be exercised without such incidental acts, then the doctrine of implied powers will come in aid. If this power conferred on the authority can be exercised without doing such acts, the doctrine will not help the authority to do such acts. In other words, the act complained of should be such that it would be essentially necessary to do in order to exercise the power or carry out the duty expressly conferred or prescribed by the legislation. This is clearly brought out by passage in Herbert Broom’s Legal Maxims (10th Edition) at page 313 as follows : –
“Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment. But if, when the maxim comes to be applied adversely to the liberties or interests of others, it be found that no such impossibility exists – that the power may be legally exercised without the doing that something else, or, even going a step further, that it is only in some particular instances, as opposed to its general operation, that the law fails in its intention unless the enforcing power be supplied – then in any such case the soundest rules of construction point to the exclusion of the maxim, and regard the absence of the power which it would supply by implication as a casus omissus”.
The learned author refers to the decision of the Judicial Committee in Doyle v. Falconer, (1866) LR 1 PC 328 where the question arose whether the Legislative Assembly of Dominice had right to punish its members by committal to gaol, when guilty of contempt of the House, or of obstructing its business, in its presence and during its sittings. The Privy Council decided against the Assembly and observed as follows –
“It must be conceded that as the common law sanctions the exercise of the prerogative by which the Assembly was created, the principle of the common law embodied in the maxim, quando lex aliquid concedit videtur et illud sine quo res iesa esse non potest, applies to the body so created. The question therefore, is, whether the power to punish for contempts committed in its presence is necessary to the existence of such body and the proper exercise of the functions which it is intended to execute. It is necessary to distinguish between a power to commit for contempt, which is a judicial power, and a power to remove an obstruction offered to the liberations of legislative body during its sitting, which last power is necessary for self preservation. If a member of a Colonial Assembly is guilty of disorderly conduct in the House whilst sitting, he may be removed, or excluded for a time, or even expelled; but there is a great difference between such powers and the judicial power of inflicting a penal sentence for the offence. The right to remove for self-security is one thing, the right to inflict punishment, is another. The former is all that is warranted by the maxim above cited, but the latter is not its legitimate consequence. To establish the privilege claimed, it must be shown to be essential to the existence of the Assembly an incident since quo res ipsa esse non potest”.
22. Turning to the provisions of the Wakf Act, we find that there is sufficient safeguard for protecting the interests of the wakf if the mutawalli misbehaves or mismanages. Under the terms of S. 15, it shall be the duty of the Board so to exercise its powers under the Act as to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered etc. The language of the section is very clear that the Board should exercise only such powers as are conferred under the Act. The express powers are conferred under various sections. It is also interesting to note that the power of appointment and removal of muthawallis conferred under S. 15(2)(g) should also be in accordance with the provisions of the Act, as expressly stated in the said sub-clause. The duties of mutawallis are clearly specified in S. 36 of the Act. If a mutawalli fails to act in accordance with the provisions of the Act or acts against the interest of the Wakf, he can be proceeded against and penalised under the provisions of S. 41 of the Act. We have already seen that S. 43 privides for removal of mutawallis. In view of the specific provisions contained in Ss. 41 to 45, it cannot be said that the Board cannot ensure due control, proper maintenance and administration of the wakf except by the appointment of an Executive Officer or a committee when a mutawalli is in management of the Wakf. If the board finds that the mutawalli is not fit to continue in management, it can take appropriate proceedings against him. When the Board finds that there is no case for the removal of the mutawalli, then it cannot resort to a procedure by which he becomes honest. Such a procedure cannot be brought in even with the aid of doctrine of implied powers. We hold that the orders of the Wakf Board appointing Executive Officers and appointing management committee in these cases are ultra vires the powers of the Board and null and void as they cannot be supported by any of the provisions of the Act.
23. As we have taken the view that the Board has no power to appoint an Executive Officer, it is unnecessary for us to consider the question whether the Board can direct the mutavalli to pay the salary of the Executive Officer.
24. In the result, we allow the writ appeals and set aside the judgment of the single Judge in the writ petition. The concerned writ petitions are allowed and the impugned orders of the Wakf Board are quashed. There will be no order as to costs.
25. Appeals allowed.