IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Syed Waqarul Ahad & Ors. Vs. State of Rajasthan & Others (S. B. Civil Writ Petition No.7537/2007) S.B. Civil Writ Petition under Article 226 of the Constitution of India. Date of Judgment: February 11, 2009 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Ajeet Bhandari, for the Petitioners. Mr. M.C. Taylor, for respondents No.2 to 4. REPORTABLE Per Court: Aggrieved by the stigmatic order dated 13-9-2007, whereby the Committee constituted by the Rajasthan Board of Muslif Wakf (`the Board' for short) has been removed unceremoniously, the petitioners, the members of the Committee, have challenged the said order before this Court. 2. The facts of the case are that an old Masjid, known as Masjid Johari ka Renta, at Jaipur, which holds properties measuring 1 bigha 6 biswas of land near the Masjid, is a wakf registered under the Wakf Act,1995 (`the Act', for short). Vide order dated 20-8-2001, the Board had appointed a Management Committee consisting of Hazi Jumma Khan, as the Chairman, Syed Waqarul Ahad, as the Secretary, and Mohammad Ibrahim, as the Cashier. Subsequently, Hazi Jumma Khan, the Chairman, expired. No one was appointed in his place. The petitioners were managing the affairs of the Masjid in most satisfactory manner. Large number of litigations were pending with regard to properties of Masjid and the petitioners were successfully contesting the same. However, after six years, suddenly vide order dated 13-9-2007, the Board withdrew the order dated 20- 8-2001 and appointed a new Management Committee. Therefore, the petitioners have preferred the instant petition. 3. At the outset, Mr. Ajeet Bhandari, the learned counsel for the petitioners, has frankly stated that the petitioners were constrained to file this writ petition on 17-9-2007. For, at the relevant time, as the Presiding Officer of Wakf Tribunal (`the Tribunal', for short) was not appointed, the said Tribunal was not functioning. But subsequently, the petitioners have filed an appeal before the Tribunal. Therefore, he made a limited prayer to this court that since the appeal has been hanging fire before the learned Tribunal for the last two years, the learned Tribunal may be directed to decide the appeal within a period of three months. Moreover, as this Court had granted an interim relief, vide order dated 20-9-2007, the same may be continued till disposal of the appeal by the learned Tribunal. 4. However, Mr. M.C. Taylor, the learned counsel for the respondents No.2 to 4 has vehemently opposed the limited prayer. In fact, Mr. Taylor has raised a preliminary objection about maintainability of the writ petition. According to him, since an alternative remedy has been provided by the Act, the petitioners are precluded from filing the writ petition. Thus, the writ petition is not maintainable. 5. Before entering into the merits of the case, it is essential to deal with the preliminary objection raised by the learned counsel for the respondents. 6. The basic purpose of law is to do justice to the people. Another purpose of law is to facilitate and to simplify the life of the people. In order to achieve these twin purposes, not only Positive Law, but even Natural Law lays down certain principles which need to be followed. While statutory law provides certain remedies to the people for voicing their grievance before a particular forum, Articles 32 and 226 of the Constitution of India provide a complete remedy to the people for the same purpose. The remedy provided by the statute may be efficacious or inefficacious depending upon the facts and circumstances of the case. Therefore, merely because an alternative remedy has been provided, does not mean that doors of the High Court are closed to the litigant. If the litigant finds that for certain reasons, beyond his control, he cannot have access to the statutory alternative remedy, there is nothing in Article 226 of the Constitution of India that prevents him from seeking refuge in this Court and from invoking its writ jurisdiction. After all, under its writ jurisdiction, the High Court has been bestowed with the role of protecting the rights of the people. 7. Moreover, availability of alternative remedy is not a prohibition imposed by law. It is a self-imposed limitation by the Courts themselves. But such limitations cannot be rigid, so as to tie the hands of the High Court while the Court tries to deliver justice to the people. Under Article 226 of the Constitution, while chasing injustice, the sky is the limit. Therefore, in the present case, when the petitioners were faced with the eventuality of a stigmatic order against them, and faced with the harsh reality that the Tribunal was not functioning, the petitioners had no other option, but to invoke the writ jurisdiction of this court under Article 226 of the Constitution. Therefore, in the opinion of this court, in such exceptional circumstances, the writ petition is certainly maintainable. Hence, the preliminary objection raised by learned counsel for respondents is unsustainable. 8. Of course, the learned counsel for respondents has relied upon the case of Sadhana Lodh Vs. National Insurance Co. Ltd [(2003)3 SCC 524] to buttress his contention that where an alternative remedy is provided, writ jurisdiction cannot be invoked under Articles 226 and 227 of the Constitution. However, a bare perusal of the said judgment clearly reveals that the judgment does not deal with the exceptional situation where alternative forum is non-functional when the impugned order/ award has been passed. Therefore, on factual basis the case of Sadhana Lodh (supra) is distinguishable from the present case. Hence, the principle annunciated therein is inapplicable to the present case. 9. Mr. Ajeet Bhandari, has raised two contentions before this court: firstly, the petitioners were appointed as a Management Committee vide order dated 20-8-2001 passed by the Board. According to the learned counsel, Section 67 of the Act deals with supervision and supersession of committee of management. The said section provides for a procedure, which must be followed, before the Committee can be removed. However, in the present case, the said procedure was totally ignored. In fact, vide order dated 13-9-2007, the Committee was unceremoniously removed and Mr.Mohd. Yusuf was appointed over the property belonging to wakf. Therefore, the order dated 13-9-2007 is in violation of section 67 of the Act. 10. Secondly, that before the petitioners' civil right to hold the office is disturbed, the principles of natural justice demand that an opportunity of hearing should be given to them. However, in the present case, no such opportunity was granted. Therefore, the impugned order violates the principles of natural justice. 11. On the other hand, Mr. M. C. Taylor has contended that firstly, section 67 of the Act is inapplicable to the present case. According to the learned counsel, section 67 applies only to those Committees created by a Wakif himself and does not deal with those Committees which are created by the Board. Therefore, the procedure prescribed under Section 67 is inapplicable to the present case. In order to buttress this contention, the learned counsel has relied on the case of Chief Executive Officer, Rajasthan Board of Muslim Wakf Vs. Islamuddin [2007(3) Current Diwani Reports 2355 (Raj.)]. Secondly, a Committee appointed by the Board falls within the definition of word “mutawalli”, as contained in section 3(i) of the Act. According to the learned counsel for respondents, section 64 provides for removal of mutawalli. However, section 64 of the Act is also inapplicable to the present case as the term of the Committee has ended. According to learned counsel for respondents, as per Regulation 25 of Rajasthan Muslim Wakf Regulations,1964 (`Regulations' for short) term of office of Committee is for one year. But, the Board has power to extend the term, but not beyond a period of six months. Therefore, the maximum period for the term of a Committee is only eighteen months. According to learned counsel for respondents, the Committee was appointed in the year 2001, therefore it ceased to be a Committee after eighteen months. Fourthly, in case the Board feels that a Committee needs to be dissolved, then it has ample powers under sections 70 and 71 of the Act to do so. However, since the term of the Committee had already elapsed, the Board could have reconstituted Committee under section 18 read with Section 27 of the Act. According to him, this is exactly what the Board has done while issuing the order dated 13-9-2007. Fifthly, since the petitioners could not claim the right to continue in the office, hence, neither their fundamental rights nor civil rights have been violated by the respondents. Therefore, they could not have filed the present writ petition. In order to buttress his contention, the learned counsel relies on the case of Calcutta Gas Company (Proprietary) Ltd. Vs. State of West Bengal [AIR 1962 SC 1044]. Sixthly, while relying on the case of Haji Moosakhan Vs. M.P. Wakf Board [AIR 1995 M.P. 50] and Shaik Ghouse Mohiuddin Vs. A.P. State Wakf Board [AIR 2002 A.P. 344], the learned counsel has contended that for appointment of mutawalli, if no period is specified in the appointment order, then the appointment order is vitiated. According to him, since the appointment order dated 20-8-2001 merely mentions that appointment shall continue till further orders, hence, no period of appointment was specified. Thus, the appointment order stands vitiated. In the alternative, Mr.Taylor has argued that after the completion of term of a Committee, in case the Committee were to continue then it continues only in the capacity of a caretaker. After the completion of the term, the Committee cannot and does not function as a Mutawalli. 12. Heard learned counsel for the parties, examined the impugned order and perused the material available on record. 13. This petition raises many interesting legal issues: i) Does a Committee appointed by the Board fall within the definition of “Mutwalli” or not? ii) What is the duration of term of such a Committee? iii) Is the duration of the term limited only to eighteen months under Section 18 of the Act read with Regulation 25 of the Regulations, or the term can be for an extended period to be decided by the Board? iv) Can the Committee be removed by the Board without following the principles of natural justice? v) What is the procedure to be followed in case the Committee needs to be removed? 14. The answers to these legal issues lie in the provisions of the Act and the regulations contained in the Regulations. Hence, we must turn to them first. Section 3 (i) defines the term “mutawalli” as under: 3. Definitions. In this Act, unless the context otherwise requires- (i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a Wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any Custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property: Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation; Section 3 (r) defines the term Wakf and Wakif as under: (r) "wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes- (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) "grants", including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and "wakif" means any person making such dedication; Chapter IV deals with the establishment of the Board and its functions. Section 13 of the Act empowers the State Government to appoint a Board of Wakfs. Section 14 deals with the composition of the Board. Section 15 lays down that the term of the Board shall be for five years. Section 18 deals with Committees of the Board as under: 18. Committees of the Board. (1) The Board may, whenever it considers necessary, establish either generally or for a particular purpose or for any specified area or areas committees for the supervision of wakfs. (2) The constitution, functions and duties and the term of office of such committees shall be determined from time to time by the Board: (Emphasis added) Provided that it shall not be necessary for the members of such committees to be members of the Board. Section 18 has to be read along with Regulation 25 of the Regulations. Regulation 25 is as under: “25. Term of office of committees: Each committee shall be continued for a term of one year: Provided that the Board, may by resolution made in that behalf, extend the term for a further period not exceeding six months.” Section 64 deals with removal of Mutawalli as under: 64. Removal of Mutawalli.--(1) Notwithstanding anything contained in any other law or the deed of wakf, the Board may remove a mutawalli from his office if such mutawalli- (a) has been convicted more than once of an offence punishable under section 61; or (b) has been convicted of any offence of criminal breach of trust or any other offence involving moral turpitude, and such conviction has not been reversed and he has not been granted full pardon with respect to such offence; or (c) is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of a mutawalli; or (d) is an undischarged insolvent; or (e) is proved to be addicted to drinking liquor or other spirituous preparations, or is addicted to the taking of any narcotic drugs; or (f) is employed as a paid legal practitioner on behalf of, or against, the wakf; or (g) has failed, without reasonable excuse, to maintain regular accounts for two consecutive years or has failed to submit, in two consecutive years, the yearly statement of accounts, as required by sub-section (2) of section 46; or (h) is interested, directly or indirectly, in a subsisting lease in respect of any wakf property, or in any contract made with, or any work being done for, the wakf or is in arrears in respect of any sum due to such wakf; or (i) continuously neglects his duties or commits any misfeasance, malfeasance, misapplication of funds or breach of trust in relation to the wakf or in respect of any money or other wakf property; or (j) wilfully and persistently disobeys the lawful orders made by the Central Government, State Government, Board under any provision of this Act or rule or order made thereunder; (k) misappropriates or fraudulently deals with the property of the wakf. (2) The removal of a person from the office of the mutawalli shall not affect his personal rights, if any, in respect of the wakf property either as a beneficiary or in any other capacity or his right, if any, as a sajjadanashin. (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. (4) A mutawalli who is aggrieved by an order passed under any of the clauses (c) to (i) of sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final. (5) Where any inquiry under sub-section (3) is proposed, or commenced, against any mutawalli, the Board may, if it is of opinion that it is necessary so to do in the interest of the wakf, by an order suspend such mutawalli until the conclusion of the inquiry: Provided that no suspension for a period exceeding ten days shall be made except after giving the mutawalli a reasonable opportunity of being heard against the proposed action. (6) Where any appeal is filed by the mutawalli to the Tribunal under sub-section (4), the Board may make an application to the Tribunal for the appointment of a receiver to manage the wakf pending the decision of the appeal, and where such an application is made, the Tribunal shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), appoint a suitable person as receiver to manage the wakf and direct the receiver so appointed to ensure that the customary or religious rights of the mutawalli and of the wakf are safeguarded. (7) Where a mutawalli has been removed from his office under sub-section (1) the Board may, by order, direct the mutawalli to deliver possession of the wakf property to the Board or any officer duly authorised in this behalf or to any person or committee appointed so act as the mutawalli of the wakf property. (8) A mutawalli of a wakf removed from his office under this section shall not be eligible for re-appointment as a mutawalli of that wkaf for a period of five years from the date of such removal. Section 67 deals with supervision and supersession of committee of management as under: 67. Supervision and supersession of committee of management. (1) Whenever the supervision or management of a wakf is vested in any committee appointed by the wakf, then, notwithstanding anything contained in this Act, such committee shall continue to function until it is superseded by the Board or until the expiry of its term as may be specified by the wakf, whichever is earlier: Provided that such committee shall function under the direction, control and supervision of the Board and abide by such directions as the Board may issue from time to time: Provided further that if the Board is satisfied that any scheme for the management of a wakf by a committee is inconsistent with any provision of this Act or of any rule made thereunder or with the directions of the wakf, 33 it may, at any time, modify the scheme in such manner as may be necessary to bring it in conformity with the directions of the wakf or of the provisions of this Act and the rules made thereunder. (2) Notwithstanding anything contained in this Act and in the deed of the wakf, the Board may, if it is satisfied, for reasons to be recorded in writing, that a committee, referred to in sub- section (1) is not functioning properly and satisfactorily, or that the wakf is being mismanaged and that in the interest of its proper management, it is necessary so to do, by an order, supersede such committee, and, on such supersession, any direction of the wakf, in so far as it relates to the constitution of the committee, shall cease to have any force: Provided that the Board shall, before making any order superseding any committee, issue a notice setting forth therein the reasons for the proposed action and calling upon the Committee to show cause within such time, not being less than one month, as may be specified in the notice, as to why such action shall not be taken. (3) Every order made by the Board under sub-section (2) shall be published in the prescribed manner and on such publication shall be binding on the mutawalli and all persons having any interest in the wakf. (4) Any order made by the Board under sub-section (2) shall be final: Provided that any person aggrieved by the order made under sub- section (2) may, within sixty days from the date of the order, appeal to the Tribunal: Provided further that the Tribunal shall have no power to suspend the operation of the order made by the Board pending such appeal. (5) The Board shall, whenever it supersedes any committee under sub-section (2), constitute a new committee of management simultaneously with the order made by it under sub-section (2). (6) Notwithstanding anything contained in the foregoing sub- sections, the' Board may, instead of superseding any committee under sub-section (2), remove any member thereof if it is satisfied that such member has abused his position as such member or had knowingly acted in a manner prejudicial to the interests of the wakf, and every such order for the removal of any member shall be served upon him by registered Post: Provided that no order for the removal of the member shall be made unless he has been given a reasonable opportunity of showing cause against the proposed action: Provided further that any member aggrieved by any order for his removal from the membership of the committee may, within a period of thirty days from the date of service of the order on him. prefer an appeal against such order to 34 the Tribunal and the Tribunal may, after giving a reasonable opportunity to the appellant and the Board of being heard, confirm, modify or reverse the order made by the Board and the order made by the Tribunal in such appeal shall be final. Section 70 of the Act deals with inquiry in relation to administration of wakf as under: 70. Inquiry relating to administration of wakf.--Any person interested in a wakf may make an application to the Board supported by an affidavit to institute an inquiry relating to the administration of the wakf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, it shall take such action thereon as it thinks fit. Section 71 of the Act lays down the procedure for holding of inquiry as under: 71. Manner of holding inquiry.--(1) The Board may, either on an application received under section 73 or on its motion.- (a) hold an inquiry in such manner as may be prescribed; or (b) authorise any person in this behalf to hold an inquiry into any matter relating to a wakf and take such action as it thinks fit. (2) For the purposes of an inquiry under this section, the Board or any person authorised by it in this behalf, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) for enforcing the attendance of witnesses and production of documents. 15. A bare perusal of these provisions clearly reveals that a Committee appointed by the Board is a Mutawalli under Section 3 of the Act. Under Section 18 of the Act, the Board is empowered to establish a Committee “either generally or for a particular purpose or for any specified area or areas committees for the supervision of wakfs.” Moreover, “the constitution, functions and duties and the term of office of such committee shall be determined from time to time by the Board.” (Emphasis added) Thus, the Board is empowered to fix the term of the office of the Committee. However, Regulation 25 prescribes that each committee shall be continued for a term of one year, provided that the Board may extend the term for a further period not exceeding six months. 16. Thus, obviously there is a conflict between the unlimited power given to the Board under Section 18 of the Act and the limited power given to the Board under Regulation 25 of the Regulations. In view of this apparent contradiction between the two provisions, Mr. Taylor has argued that the Board cannot