HAJI SYED MOHAMMAD HUSSAIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner is the Mutawalli of a Public Religious and Charitable Institution known as 'Soghra Wakf Estate.' It is stated in the writ application that one Bibi Soghra had dedicated extensive property by a registered document D/-30-9-1896 embodying the terms and conditions of the wakf created thereby and laying down the scheme for its management. According to the document, the administration and management of the property vested in the Mutawalli, who has to be assisted by two Naibs and Committee. Subsequently, a new scheme for the management of the wakf was framed by the District Judge, Patna, by his decision in T. S. 12 of 1919, It is, however, not necessary to give the details of the scheme except mentioning that the Mutawalli's right of administration and management was reaffirmed. The Bihar legislature passed an Act for the purpose of general supervision of the wakf within the State of Bihar, which was known as Bihar State Wakf Act, 1947, whereunder a Board known as Bihar Sunni Majlis-e-Awqaf was formed. The Majlis was vested, by the Act, with the authority, supervise the proper function of the Sunni Wakf and the present Soghra Wakf Estate is one of them and it continued to do so till 7th April, 1973 when the Bihar Act was replaced by a Central Act. The Wakf Act, 1954. The petitioner who was earlier the first Naib of the Wakf Estate has been its Mutawalli since 26-12-72, On the death of the earlier Mutawalli. Under the provisions of the Wakf Act, 1954 (The Central Act) a new Bihar State Sunni Wakf Board came into existence and started functioning from 12th April, 1974. Soon thereafter the Committee which had been formed for assisting the petitioner Mutawalli was superseded and an Ad Hoc Committee was constituted by an order of the State Government passed in its Law Department. The Ad Hoc Committee suspended the petitioner. The Special Officer of the Bihar State Sunni Wakf Board, on being moved by the affected parties, set aside the constitution of the Ad Hoc Committee, but maintained the suspension order of the petitioner. The petitioner, thereafter, approached this Court in its writ jurisdiction by filing C. W. J. C. 2074 of 1977, which was al- towed on 9-3-1976. The order of. the suspension of the petitioner was quashed and he was allowed to join as Mutawalli. The petitioner has imputed bad faith on the part of the Chairman of the Wakf Board and has alleged that subsequently without making any legal enquiry, he got the petitioner dismissed by a resolution of the Board dated 5-6-1978. The petitioner again filed another application in this Court under Article 226 of the Constitution, which was registered as C.W.J.C. 2691 of 1978 (Pat). By order dated 17-7-1978 passed by us, the order of dismissal of the petitioner was set aside and the petitioner again joined the office of Mutawalli. Thereafter, the impugned order as contained in Annexure '3' dated 31-8-78 was passed by the State Government appointing an Executive Officer for the Wakf Estate for the purpose of management of the property, finance and administration of the Estate. The petitioner was informed through a letter of the Secretary to the Government, Law Department, dated 31-8-1978, a copy whereof has been annexed to the writ application as Annexure 4, that the respondent No. 3 Shri S. M. Shafiuddin had been appointed as the Executive Officer. By the present application, the petitioner has prayed for quashing of the orders mentioned in Annexures 3 and 4.

(2.) Mr. Ashgar Hussain, learned counsel for the petitioner, has contended that the Chairman of the Wakf Board is prejudiced against the petitioner and had earlier unsuccessfully attempted to remove the petitioner from the office of the Mutawalli without any just cause. The resolution of the Board dated 5-6-1978 referred to above, had been passed without any enquiry in the conduct of the Mutawalli and after the same was quashed in C. W. J. C 2691 of 1978 (Pat), a fresh attempt is being made by passing the impugned order to the same effect. Additional Advocate General, appearing for the State Government, has rightly contended that the question of mala fides cannot be examined in the present case in absence of the Sunni Waqf Board and its Chairman, who have not been impleaded as parties to the present case. But the second question raised on behalf of the petitioner appears to be well founded. It has been urged that the State Government does not have any authority whatsoever to remove the Mutawalli of a Waqf and for that reason the impugned orders in Annexures 3 and 4 are without jurisdiction. The only provision in the Waqf Act, 1954 which has been relied upon on behalf of the respondents is section 63 of the Act which reads as follows:

(3.) The question which arises in this case is as to whether Section 63 of the Act clothes the State Government with the power to pass orders as contained in Annexure 3 and 4. The learned Additional Advocate General argued that the interpretation by the petitioner of the impugned orders that they amount to removal of the petitioner from Mutawalliship, is erroneous. The learned Counsel stales that the petitioner has not been disturbed from his office and by Annexures 3 and 4 the State Government has merely appointed an Executive Officer which cannot be challenged by the Mutawalli. I am afraid, the matter does not appear to be so simple as suggested. The powers of the Executive Officer have been mentioned in six paragraphs at the end of Annexure 3. The first item states that the Executive Officer would be the highest officer with the authority to manage the property, finance and administration of the Wakf Estate. It has been correctly asserted on behalf of the petitioner and not challenged by the learned Additional Advocate General that the Mutawalli was vested with the highest authority in regard to the administration of the Wakf and its property; and so there does not appear to be any manner of doubt that by orders in Annexures 3 and 4, the petioner has been deprived of his rights and the same have been vested in the respondent No. 3. If is, therefore, futile to suggest that the petitioner has not been prejudiced so as to maintain this application. It; is clear that the petitioner has been divested of his authorities, although not in express terms, and, in substance he has been removed from the office of Mutawalliship. I. therefore, hold that the petitioner is fully entitled to come to this Court for she redress of his grievance.