Karnataka High Court
Syed Enayathulla vs State Of Karnataka, By Secretary, ... on 6 January, 2004
Equivalent citations: ILR2004KAR2882, AIR 2004 KARNATAKA 295, 2004 AIR - KANT. H. C. R. 1348, (2004) ILR (KANT) (3) 2882, (2004) 2 KCCR 887, (2004) 3 CIVLJ 691
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. Petitioner claims that he is the Mutavalli of the Hazrath Hub-Ali Shah Makan at Kolar. It is the claim of the petitioner that he has been an hereditary Mutawalli of this Darga. It appears that he was in fact appointed as Mutawalli as per Order No. KTW/M-1/23-KLR-84-85, Bangalore dated 9th August, 1990 issued by the Karnataka Board of Wakfs, Bangalore (copy at Annexure A). Petitioner was required to function under the general supervision and control of the District Wakf Committee, Kolar.
2. The district Wakf committee for the district of Kolar within which the Hazarath Hub-Ali shah Darga is located is also constituted by the Karnataka Wakf Board.
3. It is the claim of the petitioner that the petitioner had brought to the notice of Wakf Board about certain undesirable activities on the part of members of the District Wakf Committee particularly in the matter of construction and leasing of some 19 shops and also in the matter of collection of rent and other charges from about 47 shops which are in the ownership of Hazrath Hub AH Shah Makan. A shopping complex constructed in the property of the Darga was the subject matter of mismanagement by some of the officers and members of the District Wakf Committee.
4. It appears that the Government also had received certain complaints in this regard and the matter had been referred to the Lok Ayukta for investigation. The Lok Ayukta which had investigated the matter had forwarded its observation note. A copy of the same had also been furnished to the petitioner along with it's communication dated 5.4.1999 (copy at Annexure D). It is significant to note that the petitioner's name figures as 5th person amongst the persons who were held to be responsible for various lapses that has been noticed and enumerated in the report of the Lok Ayuktha.
5. Petitioner had filed his objections to the observation note of the Lok Ayukta as per communication dated 26.4.1999 addressed to the Chief Engineer, Technical Audit Cell, Karnataka Lokayukta, M.S. Building, Dr. B.R. Ambedkar Road, Bangalore 560001 (copy of Annexure-E) . Petitioner had inter alia denied any misconduct or misappropriation of the funds of the Dargah on his part and had also highlighted that it was the petitioner who had in fact complaint about the irregularities committed by some of the officers of the District Wakf Committee and that action was required to be taken against such persons. Petitioner had requested, the Lok Ayukta to drop further proceedings so far as the petitioner was concerned.
6. The Lok Ayukta after considering the replies given by; various persons who had come in adverse notice as per its observation note dated 5.4.1999 having examined the same had submitted a report to the Government under Section 12(3) of the Lok Ayukta Act inter alia indicating that the petitioner was also a person who was responsible for certain acts of mismanagement that he was not a person who is desirable to hold the post of Mutawalli, that in respect of persons mentioned in the report a declaration under Section 13 was made and that such persons should be ensured to vacate their posts. It is subsequent to such a report by the Lok Ayukta that the Government addressed a communication to the Wakf Board for taking further action against the persons named by the Lok Ayukta in the report . The Wakf Board having responded to this communication by passing order of removal of the petitioner removing him from the post of Muttawalli of the Dargah in question as per order dated 27th December , 2000 copy at Annexure F, petitioner is before this Court challenging the validity of the order of removal.
7. Sri S.A. Khuddus, Learned Counsel for the petitioner has urged several contentions inter-alia pointing out to the infirmity in the order at Annexure E Submission of learned Counsel is that the order at Annexure F is in Violation of the provisions of the Wakf Act, that it is arbitrary and also in violation of principles of natural justice, that though the Lok Ayukta had not noticed any incident of misconduct or mismanagement on the part of the petitioner. Nevertheless he has been mechanically included in the list of persons against whom action is required to be taken and the Government and the Wakf Board having acted on that without due application of mind and the action on their against the petitioner was not warranted at all and that the impugned order is bad in law.
8. Learned Counsel for the petitioner submits that the very fact that the petitioner had complained against the mismanagement by the members and officers of the District Wakf Committee particularly in the matter of managing the affairs of the Dargah in question, itself was proof enough to show not only bona fide conduct on the part of the petitioner but also the petitioner was very keen in ensuring that the properties of the Dargah were managed in the best interest of the Dargah and for a common good. It is also the submission of learned Counsel for the petitioner that the Board instead of taking proper penal action against all the erring members and officers of the District Wakf Committee had passed order of removal against the petitioner himself ignoring the findings of the Lok Ayukta.
9. It is the submission of learned Counsel that the Board assuming that it had acted on the advice of the Government who had in turn acted on the recommendation of the Lok Ayukta should not have proceeded to pass orders at Annexure F even without following the procedures required under Section 64(3) of the Wakf Act. Learned Counsel submits that the Act statutortly provided proper opportunity of hearing of any Mutawalli who is required to be removed from the post if the Board proposed such action against any Mutawalli and proceedings as contemplated under Section 64 of the act is not followed before passing the impugned order of removal and the same is bad in law and it is required to be quashed.
10. Sri Phanindra, learned Counsel for 'the Wakf Board has countered these submissions and has pointed out that the action taken by the Wakf Board is quite justified in the light of the recommendation of the Lok Ayukta. Learned Counsel submits that the petitioner was holding a responsible post as a Mutawalli and it was his duty to ensure that the affairs of managing the property of the Dargah in question were conducted in a proper manner and there was no scope for any mismanagement or loss of revenue to the Dargah.
11. Assuming that the Government was acting on the report of the Lok Ayukta submitted under Section 12(3) of the Lok Ayukta Act and in turn had asked the Wakf Board to initiate necessary action against the persons named by the Lok Ayukta in its report, the Wakf Board could have acted only in accordance with the statutory provisions and not independent of the same and if the report of the Lok Ayukta should be accepted at its face value and that the petitioner is a person who can be termed as a person against whom the Lok Ayukta could have submitted a report under Section 12(3) of the Act and a declaration under Section 13 of the Act, the consequences cannot be beyond what is contemplated under the Lok Ayukta Act and the Wakf Act, Petitioner at the best can be termed as a person who satisfies the definition of a public servant within the meaning of Section 2(12)(g) of the Act as he is a person who was appointed as a Mutawalli by the Wakf Board which is a statutory Board under the Wakf Act. If a declaration under Section 13 of the Lok Ayukta Act is made in respect of a person like the petitioner and in a report submitted under Section 12(3) of the Act the consequences will be as contemplated under Section 13(2)(iii) which reads as under:
"(iii) if a public servant falling under items (d) and (g) of Clause (12) of Section 2 be deemed to have been placed under suspension by an order of the appointing authority."
12. The immediate effect of the report of the Lok Ayukta would have been to place the petitioner under suspension and order of suspension deemed to have been issued by the appointing authority, the Wakf Board. In fact the Government also had called upon the Board to take further action as per law under the provisions of the Wakf Act. If any action is contemplated against the Mutawalli particularly for his removal, procedure as contemplated in Section 64 of the Wakf Act will have to be followed. The compliance of requirement of Sub-section 3 of Section 64 of the Wakf Act is mandatory which reads as under:
"(3) No action shall be taken by the board under Sub-section (1), unless it has held an inquiry into the matter in a prescribed manner and the decision has been taken by a majority of not less than two-thirds of the members of the Board."
13. In the present case there is absolutely no indication that either an enquiry was held as against the petitioner by giving an opportunity to the petitioner to participate in such an enquiry or that there is any resolution for removal of the petitioner from the post of Mutawalli passed by a majority of not less than 2/3rd members of the board.
14. Sri Phanindra, Learned Counsel appearing for the Wakf Board is not in a position to support the impugned order at Annexure F by pointing out that the procedure as contemplated under Section 64(3) has been followed.
15. In the circumstances, the order of removal passed against the petitioner as per Annexure F cannot be sustained. It is accordingly quashed by issuing a writ of certiorari. However the 2nd respondent Wakf Board is at liberty to take action as contemplated under Section 64 of the wakf Act.
16. Writ Petition allowed. Rule made absolute.