THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO. 2254 OF 2005 JUDGMENT (Per Sri Justice B Prakash Rao) This appeal under Clause 15 of Letters Patent is filed at the instance of an unsuccessful petitioner, aggrieved against the orders dismissing a writ filed by him as per orders in W P No. 22002 of 2005 dated 25th October 2005. Heard Sri B.V.S.Sivarama Prasad, learned counsel for the appellant and Mr Shafath Ahmed Khan, learned Standing Counsel for Wakf Board, appearing for respondents. In brief, the facts giving rise to these proceedings are that the appellant, hereinafter referred to as the petitioner claims to be a mutavalli of an institution consisting of a mosque in Lalapet area of Guntur town, and sought for a writ under Article 226 of the Constitution of India for a Mandamus inter- alia assailing the correctness of the twin proceedings dated 9.9.2005 passed by the first respondent viz., The Chief Executive Officer of the Board and consequential orders dated 15.9.2005 passed by the third respondent/Enquiry Officer appointed by the Board. The proceedings dated 9.9.2005 pertain to placing the petitioner under suspension, whereas, the later proceedings dated 15.9.2005 is a show cause notice issued by the enquiry officer calling upon the petitioner to submit an explanation in respect of the allegations made therein. The case of the petitioner is to the effect that having regard to the powers conferred under Section 64 (5) and 64 (3) of the Wakf Act, 1995 (for short the Act, 1995), the entire proceedings are without jurisdiction and even the alleged show cause notice is bereft of any valid material or basis to warrant any such proposed action. The case of the petitioner is that since the impugned orders dated 9.9.2005 are passed by the Chief Executive Officer, who is not competent nor conferred with any powers under the above provisions of the Act and therefore the same is totally without jurisdiction. Admittedly, the impugned orders not being initiated and having any inception from the competent authority viz., the Board, the same would not hold good in law. Earlier, the petitioner has filed a writ in W P No. 12753 of 2005 challenging the orders wherein he was placed under suspension and an enquiry was directed to be conducted, and this Court as per the orders dated 17.7.2005 allowed the said writ petition on the ground that the Chief Executive Officer of the Board is not competent to initiate any proceedings or place the mutawalli under suspension. However, in appeal at the instance of the Board in W A No. 1377 of 2005, the Division Bench of this Court has varied with the order of the learned Single Judge holding that there is nothing in the impugned order, which would suggest that the order had been passed on the instructions of the second respondent and therefore the competent authority can always pass such order after complying with the provisions of law. Thereafter, the present impugned proceedings have been issued, hence the challenge. Contesting the case of the petitioner on both the grounds, there is denial on the part of the Board and asserting that there is due compliance of the necessary requirement, since the Special Officer has approved the entire proceedings and therefore there is nothing illegal nor there is want of jurisdiction. Further, having regard to the nature of seriousness of the allegations, the order of suspension is perfectly sustainable and enquiry is rightly initiated. Considering all these and other submissions made from both the sides, the learned Single Judge did not find favour with the appellant’s contention and dismissed the writ petition at the admission state itself, interalia holding that having regard to the earlier orders passed in W A No. 1377 of 2005 and the file which is produced before the learned Single Judge which contains the note to the effect that on 11.8.2005 a proposal was made proposing to place him under suspension under Section 64 (5) of the Act and the same was endorsed by the first respondent on the said proposal as approved and therefore in view of the approval of the Special Officer on 5.9.2005 of the draft proceedings, there is no illegality nor the impugned proceedings can not get invalidated and that apart it was held that having regard to the fact that the impugned action only being a show cause notice, the appellant can as well submit his explanation to the allegations and that it is not open to this Court to interdict the said proceedings at that stage under Article 226 of the Constitution of India, hence rejected all the contentions. Contesting on the self same lines as set-forth before the learned Single Judge, the main submission made on behalf of the appellant is to the effect that the CEO has no jurisdiction to issue any such suspension order nor to initiate disciplinary enquiry and especially when there is nothing to show that any such proceedings are contemplated either by the Special Officer of the Board as contemplated under the provisions of the Act, the entire action is totally without jurisdiction. Further the competent authority is only the Board and in its above, the Special Officer, therefore the CEO cannot act on its own to issue or initiate the impugned proceedings. It is pointed that in spite of such a plea, no counter has been filed by the Special Officer or by the Board but only the CEO, files a counter affidavit in support of the impugned orders, which is not proper. Repealing these contentions, learned Standing Counsel appearing for the respondent Board, submitted that as already noted by the learned single Judge, there is due approval by the Special Officer as evident from the file and therefore there is no illegality in the proceedings, that apart, having regard to the earlier proceedings, the present impugned action is perfectly valid and nothing can be found fault with. Once again, the file has been produced for our perusal. On considering these and other submissions made from both the sides, and on careful perusal of the record, the point which arises for consideration is ‘whether on the facts and circumstances, the entire impugned action in placing the appellant under suspension and issuance of show cause notice is valid and sustainable?’ There is no serious dispute in regard to the manner in which the entire proceedings have commenced basing based upon the report dated 24.3.2005, in pursuance of a preliminary enquiry which is ordered by the first respondent i.e., CEO on 21.8.2004. There is no dispute to the fact that the power to initiate action is left with the Board and in the absence of the regular Board, the Special Officer who has to act, no doubt, the CEO does not find place anywhere under the provisions of the said Act and the Rules made thereunder. In this connection, Section 70 of the said Act read with Rule 24 is quite clear. For convenience sake, both read as follows: 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 o f the wakf 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. R .2 4 . Procedure for Instituting Enquiries:- (1) (a) No application for inquiry relating to administration of the Wakf under Section 70 shall be admitted by the Wakf Board, unless a fee of Rs.50/- is deposited in the Wakf Board treasury through a challan crossed bank draft or crossed postal certificate. (b) No application for inquiry shall be entertained unless supported by an affidavit an accompanied with copies equal to the number of respondents plus two extra copies. (c ) The parties to the proceedings shall deposit in cash in the office of the Board, fee at the rate of rupees ten per respondent or witness for summons and notices and rupees thirty for summoning documents. (d) In addition to the fee prescribed above the party summoning the witnesses shall bear the date of such witnesses fixed by the Board, and shall deposit the same in advance with the office of the Board. (2) Notice of inquiry shall be sent by Registered Post, Acknowledgement Due atleast fifteen days before the date fixed for the inquiry, to the parties concerned specifying the date, hour and place fixed for holding such inquiry. (3) A copy of the notice shall be fixed on the notice board of the office of the Board and in any other conspicuous place in any locality in which the property is situated such affixture shall be deemed to be sufficient service. (4) All persons who appear in response to the notice may, within the time fixed in the notice or within such further time as may be granted file written statements. (5) Any part to the proceedings shall have a right to appear in person the Memo of Evidence. (6) The inquiry shall be summary and the Inquiring Officer shall record the Memo of Evidence. (7) The board or any person authorized in this behalf while holding an inquiry shall have the same powers as are vested in a Civil Court under Orders XXXIX and XL of the Code of Civil Procedure, 1908 in respect of the following matters, namely:- (i) temporary injunctions and interlocutory orders; (ii) appointment of Receiver for management of the property which is the subject-matter of the enquiry; and (iii) appointment of a Commissioner for the purpose of this rule. (8) The provisions of the Code of Civil Procedure, 1908, and rules thereunder shall apply, as far as practicable to the appearance of pleaders, and to affidavit production of documents examination of affidavits, filing of exhibits issue of commission, return documents and pronouncement to judgment. However, as already pointed out before the learned Single Judge, the file does disclose about the approval of the Special Officer in regard to the impugned orders in respect of which there is no serious denial. In view of such approval, it cannot be said that there is no role played by the competent authority which has been conferred with such power. Though it has been contended that this Court can entertain the writ petition at the stage of show cause notice, however, it is now well established that it all depends upon the facts of each case. There is no plea that material discloses that it is without jurisdiction. Under the above provision, the Special Officer who is competent has approved the action. The role played by CEO is mere a immaterial and administrative and not a final word. It is not a case, where Special Officer did not figure at all. In this case, there is no denial to the fact that the note put up by CEO has been approved by the Special Officer, therefore the first objection does not hold any water. Coming to the second objection, even the allegations contained in the show cause notice, where he was asked to give explanation, it cannot be said that there is absolutely no basis whatsoever to initiate such disciplinary action. The allegations, prima facie are quite serious. It is not that the show cause notice is issued by an officer who has no jurisdiction at all. As stated, the entire action is with the due approval of the Special Officer, whereby, the show cause notice has emanated. In these circumstances, therefore it is quite premature to approach this Court in challenging the correctness of issuance of show cause notice, since the allegations of whatsoever nature, in the such show cause could not form part of any enquiry nor can be corrected by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. Though several other contentions were sought to be urged about the malafides behind the entire action, however, nothing specific has been alleged either in the affidavit filed in support of the writ petition nor emanates from any of the grounds raised in the appeal. Therefore, in the absence of proper grounding, we are not prepared to accept the contention. Even in regard to the correctness of the issuance of show cause notice by the enquiry officer, it cannot be said that there is any illegality in the procedure as followed. It cannot be said that enquiry officer has no power at all to frame the charges during the conduct of the enquiry. However, all these objections can still be raised in the explanation, which could be filed by the appellant to the show cause notice and he can agitate all these aspects during the course of enquiry. Therefore, we do not find any justification to entertain either any of these objections or to hold that these objections can have any due regard for consideration at this stage. In Ali Hussain Vs. Parangipettai S Ali Mosque @ Vathiyaalli[1] the Supreme Court while considering the scope of Section 69 of the Act, 1995 held that ‘right of muthavalli in the management of the wakf can be nullified only when an order of removal is passed under the provisions of Wakf Act and in the absence of such order of removal, it is difficult to conclude that the constitution of management would tantamount to an order of removal of muthavalli’. In the present case, as already stated above, there is due approval of competent authority/Special Officer, therefore the decision referred above in no way come to the aid of the petitioner. In K.M. Safiullah Vs. A.P.State Wakf Board[2] the learned single Judge of this Court while considering the proviso to section 64 (5) of the Act, 1995 held that as long as the show cause notice issued thereunder is neither vague nor bereft of details, it cannot be said that such notice is bad in law. Whereas, such a situation does not exist. In Dr.O.C.Mohammed Hashim Vs. Tamilnadu State Wakf Board[3] a learned single Judge of Madras High Court, while considering scope of section 15 and 45 of the Act, reiterates the principle that neither section 15 nor section 45 enables the Wakf Board to dispossess a muthavalli, pending an enquiry for removal of the muthavalli or for framing a scheme. However, this case, does not in any way come to the aid of the appellant, since the facts and circumstances arising thereunder are totally different. In S.U.M Prasad Vs. A.P. State Federation of Cooperative Spinning Mills Limited, Hyderabad [4] , learned single Judge of this Court while considering the legality of the departmental enquiry and alleged irregularities committed therein, held that the procedure adopted in the said enquiry is violative of principles of natural justice, whereas in this case, the enquiry is still on and appellant is yet to give the explanation to such show cause notice and it is always open for the appellant to raise all the questions and objections which can be certainly be considered and disposed of in accordance with law. Accordingly, we do not find any merits in the appeal and accordingly, the same is dismissed. No costs. _______________ B PRAKASH RAO,J ______________ SANJAY KUMAR,J DATE: -04-2010 TVK L R copy to be marked: THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR (The Judgment of the Bench delivered by Hon’ble Sri Justice B.Prakash Rao) WRIT APPEAL NO. 2254 OF 2005 Dated:21-04-2010 PD Judgment for perusal of Hon’ble Sri Justice Sanjay Kumar [1] 2002 (5) Supreme 256 [2] 2003 (2) ALT 253 [3] 1980 (1) MLJ 235 [4] 2005 (4) ALT 278