WP(C) 5974/2010 BEFORE HON’BLE MR JUSTICE B.K. SHARMA By means of this writ petition, the petitioner has challenged the Annexu re-11 order dated 20.10.2010 by which the petitioner has been directed to handov er the charge of the office of the Mutawalli with all records, papers, documents to the respondent No. 5 who is the Secretary of the Badarpur Bazar Railway Juma Masjid Committee. The order so passed is in acceptance of the resolution of the Assam Wakfs Board adopted in its meeting held on 3.10.2010 deciding to withdraw the earlier order dated 19.8.1995 by which the petitioner was provisionally app ointed as Mutawalli of Badarpur Bazar Railway Juma Masjid Wakf Estate. Such appo intment of the petitioner was subject to the approval of the Assam Board of Wakf s. By Annexure- 2 letter dated 25.3.1997 addressed to the petitioner by the Secr etary, Assam Board of Wakfs, it was conveyed that the provisional appointment of the petitioner was confirmed. 2. A writ petition being W.P.(c) No. 1500/2009 was filed by the Pre sident of the Masjid Committee with the prayer for appropriate action against th e petitioner in respect of the complaint lodged against him. The writ petition w as disposed of by order dated 3.4.2010 with the following direction - Since there were certain complaints against the Mutawalli those complaints cann ot be ignored as the complaining party had decided not to proceed further. The A ssam wafk Board has the duty and responsibility to make enquiry in case there is any allegation about the functioning of the Mutawalli. That being the position, the present writ petition is disposed of with the direction to the respondent N os. 2 and 3 to make necessary enquiry relating to the allegations as levelled by the petitioners and to take necessary action in that regard in accordance with the provisions of the Wakf Act, 1995. The said enquiry is directed to be complet ed within a period of three months from today. It is needless to say that while making such enquiries, the petitioner, responde nt 4 and all other persons who according to the respondent No. 4 are required to be heard shall be heard. 3. Pursuant to the said direction of this Court the Chief Executive Officer, Assam Board of Wakfs conducted an enquiry and submitted his report on 10.6.2010 holding the petitioner guilty of allegations against him. The copy of the enquiry report was furnished to the petitioner enabling him to make represen tation against the same, in response to which the petitioner submitted his Annex ure- 10 representation dated 16.10.2010. Thereafter, the enquiry report was acce pted and approved by the Board in consideration of which the impugned Annexure- 4 order dated 20.10.2010 has been passed by the Chief Executive Officer, Assam B oard of Wakfs. 4. I have heard Mr. G.N. Sahewalla, learned Sr. Counsel assisted by Mr. P. Deka, learned counsel for the petitioner and Mr. Wise Imran, learned cou nsel for the Respondents No. 2 and 3 as well as Mr. M.U. Mahmud, learned counsel representing the respondent No. 1. I have also heard Mr. M.U Mondal, learned c ounsel representing the respondents No. 4 and 5. 5. While Mr. Sahewalla, learned Sr. Counsel submits that the impugn ed order has been passed in gross violation of the principles of natural justice , Mr. Wiseman Imran learned counsel representing the respondents No. 2 and 3 sub mits that the particular enquiry having been conducted pursuant to the order pas sed by this Court in which the petitioner associated himself, he cannot now turn around the same so as to contend that there has been violation of the principle s of natural justice. He has also referred to Section 64 of the Wakfs Act of 199 5 so as to contend that there being alternative remedy available to the petition er, the petitioner ought to have pursued the same instead of invoking the writ j urisdiction of this court. 6. Mr. M.U. Mahmud, learned counsel appearing for the respondent No . 1 upon a reference to the resolution of the Board adopted in its meeting held on 03.10.2010 submits that the Board having decided to withdraw the appointment of the petitioner and the said order being not under challenge, the writ petitio n is liable to be dismissed. Mr. M.U. Mondal, learned counsel appearing for the respondent Nos. 4 and 5 adopting the arguments advanced by the learned counsel f or the respondents submits that the writ court would be reluctant to interfere w ith the impugned order which has been passed on the basis of the order of this C ourt and the elaborate enquiry report. 7. I have considered the submissions made by the learned counsel fo r the parties and the materials available on record. 8. The proceeding against the petitioner emanated from the above qu oted order passed by this Court in W. P.(C) No. 1500/2008. On the basis of the s aid order an enquiry was conducted and the enquiry officer by its enquiry report dated 10.6.2010 while dealing with the allegations mentioned in the report foun d the petitioner to be guilty of the allegations. The allegations made against t he petitioner are as follows: 1. Whether Kazi Nizam Uddin Mutawalli is an uneducated person who doe s not have any quality to run the Maszid ; 2. The appointment of kazi Nizam Uddin as mutawalli was provisional i.e., he was appointed subject to the approval of the Board. It is to be decide d now whether Kazi Nizam Uddin’s appointment as mutawalli remains valid though h e was not approved by the Board even after 15 years. 3. Whether Kazi Nizam Uddin mutawalli has used the maszid as his pe rsonal property as the land in question covered by Dag No. 1910/2291, 1911/2290, 1912/2289 under Pata No. 1975/02 (Old), 1442 (Old) & 1639/1260(Old) respectivel y of Badarpur Town was mutated in the name of his father and still continues at the name of the late Abdur Rahim Khan and other family members. 4. The Accounts of Wafk Estate(BRBZM) is not properly maintained by the mutawalli. He has misused the maszid fund. Further accounts submitted by him to the committee on 19.3.2006 showing 1,36,000.00 as legal expenses(95-2000) and ot her expenditure keeps much room for doubt as to its authenticity. 5. As per provision of Wakf Act 1995 it was duty of mutawalli Kazi Nizam Iddin and submit of statement of receipts and expenditure of the Wakf Estate an nually. But failed to do so. 6. No positive step was taken by the mutawalli Kazi Nizam Uddin to develop the maszid though there were ample scope to do so. 7. Whether Kazi Nizam Uddin can regard himself as Wakif as the land on wh ich the maszid stands was neither donated by him nor he constructed the maszid. 9. Out of the aforesaid allegations, the allegations No. 1, 2, 3, 5 , 6 and 7 having been found to have been proved by the enquiry officer finally c ame to the following conclusion : From the above analysis, it now appears that Nizam that Kazi Nizam Uddin mutawa lli does not appear to have the qualities of a mutawalli to run the affairs of t he maszid though he managed to run the maszid throughout the years without any d evelopment. The allegations/complaints raised by the officer bearers of the Bada rpur Bazar Rly. Zuma Maszid committee are found to be bases on facts in most cas es. The office bearers of the BBRZ are keen to take constructions work and give a new lease of life to the maszid. If Kazi Nizam Uddin is allowed to continue as mutawalli, in my opinion, there would be no development/construction of the mas zid. The relation between the maszid committee and the mutawalli may fall from b ad to worse which may lead to untoward incidents in future. In my opinion, the B adarpur Rly. Bazar Maszid committee may be allowed to function where Kazi Nizam will remain as Vice President. The Board may kindly discuss the issues and my findings noted above and take a d ecision to meet the deadline of Hon’ble Gauhati High Court. 10. Section 64 of the Wakfs Act 1995 provides for removal of a mutaw alli from his office if such mutawalli is found to be involved in any of the adv erse situation indicated in the said section. Section 64 (6) provides for prefer ring an appeal to the Tribunal against the order of removal from office. 11. Rule 52 of the Assam Wakfs Rules, 1998 provides the methodology and procedure for holding an enquiry under Sections 64 and 71 of the Act. As per the said requirement, notice of enquiry is required to be sent to the parties t o the enquiry and the mutawalli of the Wakfs Estate. All persons who appear in r esponse to the notice are required to be heard and the parties shall have right to appear in person by a pleader to adduce oral or documentary evidence and to a pply in summoning all witnesses or requisition of documents etc. 12. Upon a reference to the aforesaid requirement it is the submissi on of Mr. Sahewalla, learned Sr. Counsel for the petitioner that the aforesaid p rocedure having not been followed in conducting the enquiry, the defence of the petitioner was seriously prejudiced and consequently the entire proceeding was v itiated. He submits that on the basis of such an enquiry, even if any report was submitted, the authority could not have acted upon the said enquiry report. On the other hand, Mr. Wise Imran, learned counsel appearing for the respondent No. 2 and 3 submits that the petitioner having duly participated in the enquiry and the charges of the allegations made against him having been known to him, he ca nnot now turn around the same for alleging deprivation of reasonable opportunity of being heard. 13. The petitioner was appointed provisionally as mutawalli subject to approval of the Assam Board of Wakfs. While it is the plea of the petitioner that by Annexure-2 letter dated 25.3.1997 addressed to the petitioner conveying the confirmation of his appointment as mutawalli, it is the stand of the respond ents that such provisional appointment of the petitioner was never approved by t he Board. In this connection Mr. Sahewalla, learned Sr. Counsel has referred to the affidavit-in-opposition filed in the earlier writ petition being W.P' No. 15 00/2008 so as to contend that as per the own stand of the Chief Executive Office r, Assam Board of Wakfs, the provisional appointment of the petitioner was confi rmed. 14. Although the provisional appointment of the petitioner was conve yed to have been confirmed by the Secretary, Assam Board of Wakfs by the aforesa id letter dated 25.3.1997 there is nothing to show that such provisional appoint ment of the petitioner was approved by the Assam Board of Wakfs. In case of any approval by the Board a definite resolution will have to be adopted and thereaft er the confirmation could be conveyed in reference to such approval of the resol ution of the Board. It is in this context Mr. Wise Imran learned counsel appeari ng for the respondent No. 2 and 3 submits that the said letter dated 25.3.1997 i ssued by the Secretary, Assam Board of Wakfs was at the personal level of the Se cretary not backed by any resolution of the Board. In this connection he has als o referred to the records maintained by the Board. As regards the plea of the pe titioner that there has been violation of the principles of natural justice in c onducting the enquiry what is found is that while conducting the enquiry the pet itioner was also examined and the records were verified. Moreover, the petitione r was aware of the aforesaid order passed by this Court in terms of which an enq uiry was required to be conducted. The petitioner having participated in the enq uiry proceeding he cannot now turn around the same so as to contend that the enq uiry was not properly conducted. 15. At no point of time, the petitioner had shown any prejudice caus ed to him. If he was aggrieved by the methodology adopted in the enquiry proceed ing he ought to have raised the issue at that point of time instead of waiting t ill 16.10.2010 when for the first time he made the Anneuxre-10 representation ag ainst the enquiry report dated 10.6.2010. The enquiry report having been prepare d on 10.6.2010 the enquiry must have been conducted prior to 10.6.2010. Never du ring the said proceeding or thereafter, the petitioner made any grievance agains t the methodology and procedure adopted in conducting the enquiry. That being th e position, I am of the considered opinion that the plea of the petitioner that there has been violation of the principles of natural justice is not acceptable. 16. As regards the plea of the alternative remedy being available to the petitioner as has been raised by Mr. Wise Imran, learned counsel appearing for the respondents No. 2 and 3 Mr. Sahewalla, learned Sr. Counsel for the peti tioner submits that the impugned order being not the one for removal of the peti tioner from mutawalliship but the same being withdrawal of the provisional order of appointment, the impugned order is not appealable. I am unable to accept thi s submission in view of the fact that the effect of the impugned order is the re moval of the petitioner from mutawalliship. 17. Certain grounds have been assigned in Section 64 of the Wakfs Ac t, 1995 on the basis of which a mutawalli can be removed. Apart from the fact th at the provisional appointment of the petitioner was not approved by the Board, there were also certain allegations against him in respect of which the enquiry was conducted. In paragraph 5 of the writ petition, the petitioner himself has s tated that as per S 80 of the Wakfs Act, 1995, the Assam Board of Wakfs had cond ucted audit of the account managed by the petitioner in respect of the period fr om 2000 to 2001 to 2009 to 2010 and that on 19.8.2010 the respondent No. 3 sent a letter to the petitioner directing him to recover an amount of Rs. 12,727/- an d accordingly the petitioner deposited the same within the prescribed time. Thus there is an admission on the part of the petitioner that there was some mis-man agement in respect of the account managed by him. In the writ petition, the peti tioner has also stated about the complaints made against him and the enquiry con ducted. However, nothing has been highlighted as to how the enquiry proceeding w as vitiated and how his defence was prejudiced. The plea of violation of the pri nciples of natural justice will have to be judged in the context of the prejudic e caused to the person concerned. In the instant case except the general plea of violation of the principles of natural justice nothing has been shown as to how the defence of the petitioner was prejudiced. 18. For all the aforesaid reasons, I do not find any merit in this w rit petition and accordingly it stands dismissed.