IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.09.2008 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.NO.20482 of 2008 & M.P.No.1 of 2008 Rasheed Abdul Gaffar ..Petitioner -vs- The Tamil Nadu Wakf Board rep.by its Chairman No.1, Jaffer Sarang Garden Street Mannady, Chennai 1 ..Respondent Writ Petition filed under Article 226 of Constitution of India praying for a writ of Mandamus directing the respondent to furnish the copy of the report of the Sub committee constituted in 2005-06 and thereafter permit the petitioner to present the case before the respondent in Na.K.16167/E3/02/Kanchipuram for proper and better adjudication. For petitioner : Mr.K.Moorthy For respondent : Ms.Ajimath Begum O R D E R
Heard the learned counsel for the petitioner and the learned counsel for the respondent. By consent, the Writ Petition itself is taken up for final disposal.
2. This Writ Petition is for a direction against the respondent Wakf Board to furnish copies of the report of the Sub committee constituted in 2005-06 and for a direction against the Wakf Board thereafter to proceed for disposal of the case in Na.K.16167/E3/02/Kanchipuram.
3. The Jumma Masjid Guduvanchery is notified as Wakf and it was administered by Janab K Sheik Dawood and M.V.Abdullah during 1957-1999 and during that period it appears that there has been some complaints about the administration. The Wakf Board has approved the petitioner as a member of the Managing Committee after he took charge as the Secretary of the Mosque in March 1999. Thereafter the petitioner initiated some actions against the irregularities. The irregularities relate to the construction of some of the shops within the premises. It appears that some complaints have been lodged before the respondent Wakf Board against the petitioner due to the reason that the petitioner has proceeded to take action against the erstwhile office bearers managing the said Masjid. Based on the complaint lodged before the respondent on 11.11.2002 and 20.11.2002, the petitioner was directed to give explanation and accordingly the petitioner has also submitted his explanation. During the time of the enquiry, a Sub Committee was appointed to find out the factual situation, consisted of the members of the Board, namely M.S.Khan, Ms.Bibi Johan and Dr.Haja Majid and the petitioner is said to have appeared before them and evidence was recorded and subsequently a report has been submitted by the Sub Committee before the respondent.
4. It is also the case of the petitioner that the petitioner has submitted some of the documents before the Sub Committee, which has been dealt with by the Sub Committee during the conduct of the enquiry.
5. There has been some litigations and other Suits filed between the petitioner and the said Mr.Abdullah. Various representations have been made by the petitioner to the respondent to furnish the copies of the enquiry report of the Sub Committee, which runs to 3 volumes. However, the respondent has not chosen to furnish the same and the enquiry before the respondent has been posted to various dates and on 23.7.2008 when the matter was posted, a memo was filed stating that the petitioner is out of India and he requires one month time. However, without considering the said request and also the request to furnish the copies of the report of the Sub Committee so as to enable the petitioner to defend effectively the case before the respondent in facing the charges, the respondent Wakf Board has reserved the matter for orders on 23.7.2008. In such circumstances, the present Writ Petition is filed for the purpose of direction against the respondent to furnish copies of the Sub Committee report.
6. The learned counsel for the respondent on instructions would submit that the enquiry before the respondent against the petitioner has been adjourned due to various reasons and it is admitted that on 23.7.2008, the petitioner has also presented a memo asking for one month time due to the reason that he is not available in India. However, taking into consideration that the matter has been prolonged for a long time, the respondent Wakf Board has reserved the matter for orders.
7. The Wakf Board in the case of this sort of enquiry by the Wakf Board under the Wakf Act is like that of a Civil Court in conducting trial. In fact while considering the provisions of Section 43 of the Wakf Act 1954, the Karnataka High Court in Syed Mohammed Peer Paskha Kadri vs.Karnataka State Board of Wakfs and others reported in1979 (2) MLJ 501 has held in detail that the proceedings to be followed by the Wakf Board for conducting enquiry should be like a trial by the Civil Court by giving proper opportunities to the parties. The relevant portion of the judgment of the Karnataka High Court is as follows:
“15. The manner of holding an inquiry into any of the matters enumerated in subsection (1) of S.43 of the Act, is indicated in Rule 13 of the rules. Sub-Rule (1) of Rule 13 requires the Board to give a notice of inquiry to the muthwalli which should be not less than four days before the date fixed for the enquiry. The notice of inquiry is required to be sent by registered post acknowledgment due. Sub-rule (2) requires a copy of the notice to be affixed on the notice board of the Wakf Board and other conspicuous places of the locality where the wakf property is situated. Sub-rule (3) provides for filing of statements by the muthwalli and other persons that may desire to participate in the enquiry. Sub rule (4) authorises the parties to the proceedings to adduce oral and documentary evidence and for summoning of witnesses and documents. Sub-rule (5) directs the inquiring officer to record the oral evidence of witnesses in his own hand writing. Sub rule(6) makes applicable the provisions of the Civil Procedure Code as far as possible for the appearance of pleader, filing of affidavits, production of documents, examintion of witnesses, recording of oral evidence, proof of affidavits, filing of exhibits, issue of commissions, return of documents and other matters connected with an inquiry. Sub rule (7) requires the enquiry officer to pronounce his decsion within 15 days from the date of the conclusion of the inquiry after due notice to the parties. All these provisions providing for the conduct of the inquiries for the removal of a muthwalli fairly resemble the trial of suits in a civil court or a trial of criminal case before a criminal court. The object and intendment of making very detailed provisions for holding inquiries that the power to remove a muthwalli who holds an important place in the affairs of wakf and the members of the muslim community should be exercised after holding a regular inquiry into the misconducts, if any alleged against him. Sub section (5) of S.43 clothes an order removing a muthwalli from his office and the directions to deliver the property to the Board with that of a decree of a Civil Court and authorises a Civil court to execute such an order as if it is a decree made by it. A person removed from the office of the muthwalli is disqualified to be appointed as a muthwalli of any wakf for a period of five years from the date of his removal (vide sub section (6) of S.43) On a combined reading of sub-section (5) of S.43 and Rule 13, it is manifest the legilative intent is a regular inquiry almost analoguous to that of deciding a civil suit by a civil court or a criminal case by a criminal court, should be held by the inquiring authority or officer before removing a person from the office of the muthwalli. An order made for the removal of a muthwalli has serious civil consequences on a muthwalli of a wakf. The detailed provisions made in Rule 13 are in conformity with one of the basic principles of natural justice of audi alteram partem. The word inquiry which is not a term of art has not also been defined in the Act or the rules and therefore its meaning has to be ascertained in the context, the scheme and object of the Act and the consequences that ensue. In the context, inquiry cannot mean a mere perusal of a statement or a report made by an I.C.A.who occupies the role of a complainant, the truth of which is also disputed by the opponent. An inquiry in the context cannot mean what an inquiring officer sees with his own eyes or rely on a report made by a complainant. A fair inquiry into any matter signifies due notice to the person against whom an accusation is made and examining the evidence that establishes the truth or otherwise of the accusation, levelled against such a person.”
8. On the factual situation that conducting of an enquiry by the Sub Committee constituted by the Wakf Board is not denied, in which the petitioner has participated, ultimately the Wakf Board consisting of the members of the Sub Committeee submitted a report, it is not known as to how the petitioner is not furnished with copies of the said Sub Committee report. In fact, it is not the case of the respondent that the Sub Committee’s report has nothing to do with the enquiry which is pending before the Wakf Board against the petitioner. It is true that during the pendency of the said enquiry pending against the petitioner, the Sub Committee was constituted. Even this enquiry at one point of time came to be closed. In such circumstances, it was originally closed and is revived now and revival itself is based on the sub committee report. It is duty on the part of the respondent to furnish sub committee report, which is the minimum requirement of principles of natural justice. In such circumstances, the contention of the learned counsel for the respondent that as if the Wakf Board has closed the trial and posted the matter and reserved it for orders cannot be accepted without furnishing the copies of the Sub Committee report to the petitioner.
9. In view of the same, the Writ Petition stands allowed with direction to the Tamil Nadu Wakf Board to furnish the Sub committee report, which also contains the copies of the deposition adduced by various witnesses, constituted in the year 2005 against the petitioner, consisting of three members, namely M.S.Khan, Ms.Bibi Johan and Dr.Haja Majid, within two weeks from the date of receipt of a copy of this order and on such receipt, it is open to the petitioner to furnish his detailed explanation based on the Sub Committee report within four weeks thereafter and after receiving such objection from the petitioner, it is open to the Wakf Board to give one more opportunity to the petitioner to appear in person and explain about his case and thereafter it is for the Wakf Board to decide the issue on merits and in accordance with law.
9. The Writ Petition stands allowed in the above terms. No costs. The connected Miscellaneous Petition is closed.
ajr
To
The Chairman,
Tamil Nadu Wakf Board
No.1, Jaffer Sarang Garden Street
Mannady,
Chennai 1