Mohammed Abusali v. The Chief Executive Officer

O R D E R This Writ Petition is filed challenging the impugned show cause notice dated 13.12.2022, issued by the Chief Executive Officer (CEO), Tamilnadu Wakf Board.

¶2The short facts that are necessary to determine the lis are as under

(i) Sikandar Rowthar Wakf, Theru Palli Street, Nagore is a registered Wakf under the supervisory control of the Tamil Nadu Wakf Board. The property bearing Door No.240 about 117 acres and 17 cents in Vadakudi Village had been endowed by the petitioner's ancestor viz., Janab. Vavanna Sikhander Rowthar under Document No.1137/1904 dated 16.12.1904. The founder's friend Vajoor Madar Sahib dedicated 5.63acres to said Wakf under Wakf Deed dated 27.06.1914. Page No.2 of 13

(ii) After coming into force of Wakf Act, 1954, the above Wakf came to be registered with the Wakf Board with G.S.No.240/Tangore and in the list of Wakf, the above said Wakf Deed was found as title document.

(iii) The petitioner has further contended in his affidavit that the private property of his ancestors which had not been endowed in the above Wakf Deeds and which are being enjoyed by his family members as private property, was acquired by the national highways to an extent of 10.69 acres out of a total extent of 48-61.50 and the same came to be gazetted on 17.09.2019 and award was passed on 05.12.2020. All revenue records are in the name of estate of Vavanna Sikhander Rowthar.

(iv) The respondent herein proceeded against the petitioner by issuing a show cause notice dated 13.12.2022 in Na.Ka.No.4467/13/B7/Nagai alleging that by receiving the award amount in respect of petitioner's private property, he has contravened the provisions of the Wakf Act as the said properties are also Wakf property.

(v) The petitioner also contented that one Mohammed Ghouse Rizwan has filed O.A.No.102/2022 before the Wakf Tribunal to delete Page No.3 of 13 petitioner's private properties from the proforma. When the above O.A. is pending before the Wakf Tribunal, proceeding cannot be initiated against the petitioner and it is without jurisdiction.

(vi) After receipt of the impugned notice dated 13.12.2022, this writ petition is filed.

¶3Learned Senior Counsel Mr.N.A.Nissar Ahmed, appearing for the petitioner would contend that the power of removal of Mutawalli is only vested with the Wakf Board. However, impugned proceedings proposing to remove the petitioner from Muthawaliship has been initiated by the CEO, which suffers from want of power and jurisdiction.

¶4Learned senior counsel would further contend that once enquiry is conducted by the Wakf Board, they cannot delegate the powers to the Chief Executive Officer, for issuance of show cause notice as to why the petitioner should not be penalised for the proved charges and relied upon Section 32(2)(g) and also drew my attention to the powers of the CEO under Sections 25 and 26 of the Wakf Act. Page No.4 of 13

¶5Per contra, learned counsel for the proposed 2nd respondent/K. Mohamed Mariyam Gani, could draw my attention to the decision of the Hon'ble Supreme Court in Rashid Wali Beg Vs. Farid Pindari and others, reported in (2022) 4 Supreme Court Cases 414 and contended that any dispute questioned or other matters relating to Wakf and Wakf property, should be relegated to Wakf tribunal.

¶6WMP No.495 of 2023 filed for impleadment is allowed. The proposed party viz., K.Mohamed Mariyam Gani, is impleaded as 2nd respondent and his objection is taken on file.

¶7Heard learned counsel on either side and perused the documents.

¶8The Tamil Nadu Wakf Board has passed a resolution on

27.10.2022 in Na.Ka.No.4467/13/AA7/Nagai. I have also perused the impugned notice dated 13.12.2022, wherein it is stated as follows: fhuz nfl;g[ mwptpg;g[ bghUs; : tf;g[ rl;lk; 1995 ? ehif khtl;lk; ? EhTu; thtd;dh rpf;fe;ju; ou!;l; tf;g[ ? tf;g[ brhj;J kw;Wk; epjpapy; KiwnfLfs; rk;ge;jkhf ? fhuzk; nfl;g[ mwptpg;g[ ? mDg;g[jy; Page No.5 of 13 ghu;it : jkpH;ehL tf;g[ thhpa jPu;khdk; ,dk; vz;/191-21 e/f/vz;/4467-13-M7-ehif ehs; : 27/10/2022 ???????? /////// /////// vdnt nkw;fz;l Fw;wr;rhl;Lf;fspd; mog;gilapy; c';fs; kPj tf;g[ rl;lk; 1995 (jpUj;jpa rl;lk; 2013) gphpt[ 46.

¶5052A. 61 kw;Wk; 64d; fPH; Vd; eltof;if vLf;ff;TlhJ vd;gjw;fhd tpsf;fj;ij ,f;fhuzk; nfl;g[ mwptpg;g[ fpilf;fg;bgw;w 15 jpd';fSf;Fs; rku;g;gpf;FkhW nfl;Lf; bfhs;sg;gLfpwJ/ jtWk; gl;rj;jpy; tf;g[ rl;lk; 1995 (jpUj;jpa rl;lk; 2013) gphpt[ 46. 50. 52A. 61. 64 kw;Wk; ,ju gphpt[fspd;

fPH;

eltof;if

nkw;bfhs;sg;gLbkd bjhptpf;fg;gLfpwJ/ (emphasis supplied)

¶9On a close perusal of the impugned notice, from the first 11 paragraphs, I find that the Chief Executive Officer being the Ex-officio of the Wakf Board has issued the show cause notice on behalf of the Wakf Board. As per the resolution of the Board in Na.Ka.No.4467/13/AA7/Nagai dated

27.10.2022, the 1st respondent had communicated the show cause notice which is the decision of the Board and the petitioner was asked to submit his reply to the Board for further action. Hence, the Chief Executive Officer has not taken any action suo moto. The petitioner has neither challenged the above resolution in the manner known to law nor denied those allegations in his affidavit, assumes significance. Page No.6 of 13

¶10On further perusal of its contents, the show cause notice is with regard to the funds misappropriated by the petitioner from the Wakf account and not to decide whether the property is Wakf property or not.

¶11In the said notice, the 1st respondent has called for the reply from the petitioner to place the same before the Board for further enquiry. As the action of the petitioner attracts misappropriation of funds to tune of more than 12 crores, the Wakf Board has the power under Section 32(h) to recover the lost Wakf property and the delegation of same is not bar under Section 27 of the Wakf Act. The CEO has not issued show cause notice of his own. He communicated the decision of the Board and acted as per the direction of the Board, which squarely falls within the purview of Section 25 of the Wakf Act.

¶12As stated supra, when an alternate remedy is available to the petitioner under 83(2) of the Wakf Act, the petitioner has to approach the tribunal for his remedy.

¶13It remains to be stated that without challenging the resolution dated 27.10.2022, the petitioner has challenged the consequential order suppressing the resolution and hence, the writ petition is not maintainable, as Page No.7 of 13 per the parameters laid down by the Hon'ble Apex Court in (2022) 4 SCC 414 [cited supra]. All the matters relating to Wakf to be agitated before the Wakf tribunal.

¶14At this juncture, it is relevant to extract Rule 7(3) of the Tamil Nadu Wakf Rules 2000, which is as follows: "7. Authentication of the orders of the Board:-

(1) The Chairperson or the Chief Executive Officer shall authenticate the orders and decisions of the Board.

(2) The common seal shall remain in the custody of the Chief Executive Officer.

(3) All correspondence emanating from the Board shall be in the name of the Chairperson or the Chief Executive Officer and all correspondence with the Board shall be addressed to the Chairperson or the Chief Executive Officer."

¶15Thus, I find that the impugned notice is only a show cause notice and as against the said show cause notice, a writ petition is not maintainable, unless and until there is a gross violation of either procedures or principles of natural justice. In the instance case, the CEO has merely conveyed the decision of the Wakf Board and in the capacity of Ex-officio of the Wakf Board, he has sent the communication in the nature of show cause notice and it is for the petitioner to give a reply and thereafter, the Wakf Board has to take its call. Page No.8 of 13

¶16At this juncture, it is pertinent to be state that the resolution passed by the Wakf Board dated 27.10.2022, remains unchallenged, assumes significance.

¶17The other contention of the learned counsel for the petitioner is that since there is an OA pending before the Wakf Tribunal for deletion of the subject matter of the property, it is always open to the petitioner to expedite the proceedings and to get a decision on the merits of the case. As such when the Wakf Board has come to the conclusion that the property is a Wakf property, after following the necessary procedures, they have passed a resolution on

27.10.2022, finally thereby issued impugned show cause notice on 13.12.2022.

¶18After perusing the show cause notice issued by the CEO and also powers conferred under Section 25 of the Wakf Act, which enumerates the powers of CEO for investigating in respect of Wakf properties, inspecting or causing inspection of the Wakf properties and accounts, records, deeds and documents, doing generally of such acts, as may be necessary for the control, maintenance and superintendence of the Wakf. Page No.9 of 13

¶19Here, in the instant case, the resolution was passed by the Wakf board and in connection with the proved irregularities, explanation is sought for from the person concerned. Section 25 of the Wakf Act deals with the duties and powers of CEO and Section 27 of the Act deals with the delegation of the powers of the Board.

¶20Section 27 of the Wakf Act, is as follows: "7. Section 27 of the Act deals with the Delegation of powers by the Board.

27.Delegations of powers by the Board:- The Board may, be a general or special order in writing, delegate to the Chairperson, any other member, the Chief Executive Officer or any other officer or servant to the Board or any area committee, subject to conditions and limitations as may be specified in the said order, such of its powers and duties under this Act, as it may deem necessary, except the powers and functions of the Board mentioned under clauses (c),(d),(g) and (j) of sub-section (2) of section 32 and section 110.

¶21The delegation of the power to exercise powers under clauses (c),

(d), (g) & (j) of sub-section (2) of section 32 and and Section 110 is necessarily conferred only to the Board. Admittedly, the resolution has been passed by the Board authorising the Chief Executive Officer/1st respondent. Pursuant to the same, the impugned show cause notice has been issued. Therefore, instead of Page No.10 of 13 giving explanation, one cannot challenge the show cause notice merely under the pretext that same has been issued for removal of Muthavalli. No doubt, only the Board has the power to remove Muthawallis under Section 64 of the Act. When such situation is not reached, merely on the apprehension, the show cause notice cannot be challenged.

¶22Therefore, the action of the CEO in calling reply for the show cause notice neither infringes his power under Section 27 of the Wakf Act nor under Section 25 of the Act. Hence, the contention raised by the learned counsel for the petitioner could not be countenanced for the above reasons.

¶23Accordingly, this Court has no hesitation to come to the conclusion that the impugned notice is only a show cause notice, pursuant to the resolution passed by the Wakf board and it is in the nature of a communication only and therefore it is not in violation of Section 25 or 27 of the Wakf Act.

¶24Hence, all the contentions raised by the learned counsel for the petitioner remains rejected and the writ petition stands dismissed. No costs. Consequently, the connected Writ Miscellaneous Petitions in WMP Nos.34444 Page No.11 of 13 and 34445 of 2023, are closed.

13.04.2023 Index : Speaking order / Non-speaking order ars To The Chief Executive Officer, Tamil Nadu Wakf Board, No.1 Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai – 1. Page No.12 of 13 RMT.TEEKAA RAMAN,J ars Pre-delivery order in

13.04.2023 Page No.13 of 13

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 08.03.2023 PRONOUNCED ON : 13.04.2023 Coram: THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN WMP Nos.34444, 34445 of 2022 and WMP No.495 of 2023 Mohammed Abusali …. Petitioner Vs. 1. The Chief Executive Officer, Tamil Nadu Wakf Board, No.1 Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai – 1. 2. K.Mohamed Mariyam Gani Rep. By her Power Agent S.M.Sheik Dawood …. Respondents [R2 impleaded vide order of this Court [TKRJ] dated .04.2023 made in WMP No.495 of 2023 in WP No.35012 of 2022] Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, calling for records of the respondent dated 13.12.2022 and made in Na.Ka.No.4467/13/B7/Nagai and quash the same. Page No.1 of 13 For Petitioner : Mr.N.A.Nissar Ahmed, Sr. Counsel For Respondents : Mr.G.Mohammed Asif (For R1) Standing Counsel Mrs.A.Ajimath Begam (For R2)