IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.6029 OF 2003 BETWEEN Janab Habbeb Mujtaba Al Idroos. …PETITIONER AND A.P. State Wakf Board and another. …RESPONDENTS Counsel for the Petitioner: MR. J. PRABHAKAR Counsel for the Respondents: MR. M.A.K. MUKHEED SC FOR WAKF BOARD MR. V. SRINIVAS The Court made the following: ORDER: This revision is directed against the order of the Andhra Pradesh Wakf Tribunal, Hyderabad dated 03.01.2002 in Appeal No.12 of 1998, exercising it’s appellate jurisdiction over the orders of the Wakf Board dated 31.12.1997. Though the order impugned is one allowing the appeal of the petitioner and remanding the impugned proceedings of the Wakf Board for fresh disposal, the petitioner is aggrieved on the ground that no circumstance warrants remand of the matter. 2. The undisputed facts, in brief, are as follows: (a) Petitioner herein is Naib Mutawalli and appointed as such by H.E.H The Nizam, who is the Mutawalli of graveyard, which is described as Khitte Salaheen at Nampally, Hyderabad. The said graveyard is said to be spread over an extent of 15,911.7 sq. yards and is a registered wakf institution under Munthakab No.244 dated 24.08.1354 Fasli (1943-44 AD) and so far as H.E.H The Nizam, the mutawalli is concerned, there is nothing on record to suggest about his displeasure over the duties discharged by the petitioner as Naib Mutawalli and the initial appointment of petitioner as Naib Mutawalli was once again confirmed by H.E.H The Nizam in his letter dated 15.06.1995. (b) A member of Muslim community one Mr. Syed Hamid Hussain approached this Court by WP.No.17374 of 1997 alleging that he is espousing the cause of the members of the Muslim community and sought a direction in the nature of Writ of Mandamus to the AP Wakf Board to remove the petitioner herein and manage the wakf institution itself. He relied upon the correspondence wherein he alleged that he had made complaint including sworn affidavit of one M.A. Haleem making serious allegations against the petitioner and finally approached this Court by the above writ petition. The said writ petition was contested and by order dated 19.11.1996 the main relief for Mandamus to take over the wakf institution was not granted in view of the fact that there was no vacancy in the office of Mutwalli. But, however, the wakf board was directed to cause preliminary enquiry into the allegations leveled against the petitioner and find out, if any, substance or truth exists in the said allegations. In the event of the Board finding, prima facie, case to proceed further, it was left open for the Board to proceed under Section 64 of the Wakf Act, 1995 (for short ‘the Act’). (c) The aforesaid order of the learned Single Judge of this court was questioned in appeal by the AP Wakf Board in WP.No.1439 of 1996 and by judgment dated 03.02.1997, the appeal was allowed in part by modifying the direction of the learned Single Judge and giving further direction to the Board to take over the management etc. Questioning the said order of the Division Bench, the petitioner herein preferred an appeal with special leave before the Supreme Court in Civil Appeal No.3149 of 1997, which was allowed on 04.08.1997 setting aside the order of the Division Bench and restoring the order of the learned Single Judge and consequently, the Board was directed to proceed in accordance with Section 64 of the Act on the basis of the enquiry report already given to it. In view of the said order, the Board issued show cause notice to the petitioner dated 06.09.1997 proposing to accept the report of the enquiry officer and proposing removal of the petitioner. (d) The petitioner gave a detailed explanation/reply and after considering the same the Board passed a final order dated 31.12.1997, in pursuance of resolution of the Board dated 17.12.1997, the petitioner was removed as Naib Mutawalli and direct management was resumed by the Board. Questioning the aforesaid order, the petitioner filed an appeal being Appeal No.12/98 before the Wakf Tribunal, which has been allowed, as above, and under the impugned judgment remanded the matter back to the Wakf Board to entrust the matter to the same enquiry officer with further direction to the Enquiry Officer to examine the complainants on whose complaints charges 2 to 5 were framed and give findings by giving reasons. The said order is questioned in this revision petition. 3. Mr. J. Prabhakar, learned counsel for the petitioner, contends that the Wakf Tribunal is required to act as a civil Court exercising the same powers as that of a civil Court, as provided under Section 83 (5) of the Act. He also points out that in the absence of any separate procedure prescribed under the Wakf Act the provisions of the Civil Procedure Code, 1908 apply and relying upon the provisions for remand under Order 41 Rules 23, 23A and 25 CPC contends that no circumstance falling in any of the ingredients of the aforesaid provision exists in the present case and as such, the order of remand is clearly not warranted. Learned counsel also states that the findings recorded by the tribunal clearly show that the findings of the enquiry officer were found to be not based on any evidence and apart from lack of any reasons in support of the charges held proved by the enquiry officer. The complainants, whose complaints was enquired into, were not even examined during the enquiry. Several portions of the order of the tribunal are relied upon by the learned counsel for the petitioner to show that the tribunal having recorded adverse findings against the enquiry report, ought to have allowed the appeal as prayed for rather than remanding the same, which is wholly unjustified. 4. Per contra, Mr. M.A.K. Mukheed, the learned standing counsel for the Wakf Board, contended that the allegations on the basis of which the charges are framed against the petitioner are quite serious and the Wakf Board had appointed an Enquiry Officer, who is a retired Judicial Officer, to conduct a detailed enquiry into the matter. Since the enquiry report is accepted in entirety by the Wakf Board while passing the order of removal, the findings, in the enquiry report on the charges, are relied upon by the standing counsel to contend that mismanagement and acts detrimental to the sanctity of the wakf institution having been established against the petitioner and the report cannot be faulted by digging up minor technical infirmities therein. Learned standing counsel justifies that the enquiry was warranted as felt by this Court in the order in the writ petition and as such, the said enquiry having been conducted by recording the evidence of as many as nine witnesses on behalf of the complainants and marking of documents through them, it cannot be said that the order of removal is not based on any material. 5. Mr. V. Srinivas, learned counsel appearing for the second respondent, supplemented the aforesaid submissions by raising the question of maintainability of the revision petition by pointing out that the orders passed by the tribunal in the appeal against the order of removal are referable to Section 64(4) of the Act and finality to the decision of the tribunal given under the aforesaid provisions cannot be questioned by way of filing a revision under Article 227 of the Constitution of India, even though a judicial review against the said order may lie in different proceedings. Learned counsel, therefore, submitted that the CRP itself should be dismissed as not maintainable. 6. I have considered all the contentions, as above and examined from the record produced by the learned standing counsel and in particular, the enquiry report dated 22.01.1997, which is the basis of all the proceedings impugned herein. 7. So far as maintainability of the revision is concerned, proviso to Section 83(9) of the Act empowers this Court, on its own motion or on an application of the Board or any person aggrieved, to call for and examine the records relating to any dispute, question or other matters determined by the tribunal. Under the aforesaid power, this Court satisfies itself as to correctness, legality or propriety on such determination and may confirm, review or modify such determination or pass such other order, as this court deems fit and proper. Even under Section 83(7) of the Act the decisions of the tribunal have been given a finality and force of a decree of a civil Court. However, the power of revision is available against any such order of the tribunal. I am, therefore, unable to accept the contention of the learned counsel for the second respondent that merely because finality is given to the orders of the tribunal under Section 64(4) of the Act, the revision cannot be entertained by this Court. Even otherwise the present revision is one under Article 227 of the Constitution of India where the petitioner has paid the same Court fees as he would have paid had a writ petition under Article 226 of the Constitution of India been filed against the order of the tribunal seeking judicial review. In effect, therefore, the objection as to the maintainability is liable to be rejected and accordingly, rejected. 8. So far as the contentions, on merits, are concerned, few paragraphs from the judgment of the wakf tribunal would show that the tribunal itself was thoroughly dissatisfied with the enquiry report and its confirmation by the Board. For instance, the evidence of P.W.6 is heavily relied upon by the enquiry officer but he himself deposed on the basis of information received by him from others and had no personal knowledge. Respondent No.2 examined himself but did not examine any witnesses but the enquiry officer accepted the second respondent’s interested testimony. With regard to charge No.1, no reasons were given by the enquiry officer in support of his conclusion. With regard to charge No.2, the enquiry officer gave finding that the said charge is proved without examining the complainants on whose complaints the said charge was framed. Neither any witness was examined nor there was any other material in support of the findings reached on charge No.5. The tribunal, therefore, found in para 21 that “…In the present case the Enquiry Officer without examining the complainants on whose complaints charges 2 to 5 were framed gave finding that the above charges are proved…The enquiry officer failed to discuss the evidence to give cogent reasons for coming to the conclusion under charges 2 to 5…The Board without discussing the report in detail and without giving reasons simple passed the impugned order. In these circumstances I am of the opinion that it is a fit case where the matter has to be remanded for fresh consideration…” 9. Learned counsel for the petitioner is, therefore, right in pointing out that the aforesaid findings were sufficient to allow the appeal as prayed for but the direction as to remand was neither sought for by the Board nor was otherwise warranted on the facts of the case. 10. Since great stress was laid on the seriousness of the charges by the learned standing counsel of the Board, I have perused the enquiry report in detail. While discussing charge No.1 and the evidence of P.W.6, the enquiry officer noted that the said witness in cross-examination stated about the circumstances under which the Mosque was brought into existence on an open land and the pillars of the proposed complex were converted for the use of the present Mosque. Further, the evidence of P.W.7 was discussed; who stated that previously there was a proposal for construction of a complex but later the Mosque came into existence 5 to 7 years ago, which is a complete Mosque and that he himself had performed prayers in the Mosque along with the Jamat. The evidence of P.W.6 being hearsay is evident from his deposition recorded as follows in the enquiry report: “…P.W.6 deposed to the effect that the Naib Mutawalli was selling the grave plots receiving advances at high rate and he came to know about this fact from Jaireens (devotees) but did not know the names of the Jaireens...” 11. With the above evidence, the enquiry officer concludes that charge No.1 is proved, though there is no evidence in support thereof and the tribunal also rightly came to the same conclusion. With regard to charge Nos.2 and 3, the petitioner while denying the charges had given explanation that he had not stipulated any rules and regulations regarding entry of spiritual minded persons in the institution whether they are males or females and it is common knowledge that in all Dargahs there is every right to women to enter the institution and participate in the spiritual invocation. The aforesaid explanation is read and interpreted by the enquiry officer as follows: “The bare reading of the above explanation clearly lends support to the allegations that the intending male or female persons in the Khitte Salaheen and they staying at any point of time during 24 hours is not restricted by Naib Mutawalli and keeping in mind to this situation, now I deal with the evident let in support of charge Nos.2 and 3.” The enquiry officer thus proceeds to state that the evidence of D.Ws.1 to 4 and P.Ws.2 to 9 shows that females are residing in the houses and mulgies and existence of houses and mulgies is against the object of the wakf and as such, the Naib Mutawalli is responsible for the activities. Thus, the presence of male and female persons with children as spoken to by P.W.9 is heavily relied to concluding that charge Nos.2 and 3 are proved. On charge No.4, the enquiry officer finds that Tea vendor and Juice vendor do business at the gates of the institution, outside the premises, but on the ground that the petitioner, Naib Mutawalli, has accepted the existence of business by Tea vendor and Juice vendor, the charge is held proved against the petitioner because he did not deny the existence of business. The enquiry officer concludes that the charge is partly proved and partly not proved. Charge No.5 is held proved merely because the Naib Mutawalli has not examined himself in defence, rather than examining as to whether there is any material to hold the said charge against the petitioner. 12. Unfortunately, the aforesaid enquiry report was mechanically accepted by the Board and an order of removal was passed. It is to be kept in mind that a serious charge of misconduct alleged against the petitioner could not have been lightly presumed and held against him in the absence of any cogent evidence and the charges alleges were required to be proved by the complainants but most of the complainants, admittedly, were not examined. I am, therefore, unable to subscribe to that part of the view of the tribunal that though the enquiry officer’s report and its mechanical confirmation by the Board is not sustainable, the order of remand is warranted. 13. Applying the provisions of the Code of Civil Procedure, 1908 dealing with the power of the Court to order remand of the matter has been settled by several decisions that an order of remand is not to be passed as a matter of course unless necessary ingredients as stipulated under Order 41 Rules 23, 23A and 25 CPC are satisfied. It cannot, therefore, be said that there is any deficiency as envisaged within any of the ingredients under any of the Rules, as above, under Order 41 CPC in the present case. The legal position in that respect as culled out from the decision of the Supreme Court in P. PURUSHOTTAM REDDY v. PRATAP STEELS LTD[1] was reiterated by a Division Bench of this Court in KETHA SUJATHAMMA v. B. RAMMURTHY[2] to which I am a party. It is, therefore, well settled that “inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code and it is only in exceptional cases where the Court may now exercise the power of remand dehors Rules 23 and 23-A… An unwarranted order of remand gives the litigation an undeserved lease of life and therefore, must be avoided.” 14. Even assuming that the said provisions are not applicable to the facts of the present case; an order of remand, which was not sought for by the Board or by any of the complainants coupled with the absence of any complaint of lack of any opportunity, ought not to have been ordered. Such an unwarranted remand would give a fresh opportunity to the complainants to fill up the lacunae in the evidence, which are now noticed on scrutiny and in such an event, the petitioner, undoubtedly, will suffer serious prejudice. 15. It is also necessary to notice one more aspect, which has material bearing, even if order of remand is allowed to be sustained for any reason. The Wakf Board, as on today, though empowered to take action against Mutawalli under Section 64(1) of the Act, sub-section (3) of Section 64 of the Act mandates that no action shall be taken by the Board under sub-section (1) unless it has held an enquiry into the matter in a prescribed manner. It is an admitted case that no Rules are framed for the purpose of holding of enquiry as contemplated under Section 64(3) of the Act as per the Rule making power of the State Government under Section 109 of the Act. As nothing is prescribed in the Rules and as on today, it appears that the Rules are yet to be finalized in that respect. Thus, even otherwise no useful purpose would be served even if order of remand passed by the tribunal is upheld in spite of serious objections to it. 16. The Wakf Board in its supervisory capacity can always monitor the functioning of the institution and take appropriate steps. Even if the complainants in the present case fail to establish the charges levelled against the petitioner, the Wakf Board is empowered to monitor the administration of the institution and take appropriate remedial steps at any time. The removal of the petitioner from the office of Naib Mutawalli on the basis of the impugned enquiry report and its confirmation by the Wakf Board is clearly not warranted on the facts and circumstances of this case. Consequently, the order of the tribunal to the extent of remanding the proceedings to the Wakf Board with further directions shall stand set aside and the Appeal No.12 of 1998 filed by the petitioner before the Andhra Pradesh Wakf Tribunal shall stand allowed as prayed for. The civil revision petition is accordingly allowed. However, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J September 23, 2011 DSK [1] (2002) 2 SCC 686 [2] 2009 (3) ALT 747 (D.B.)