Madras High Court
H.M.Shamsudeen vs The Chief Executive Officer on 2 February, 2023
W.P.No.2657 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2023
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
W.P.No. 2657 of 2023
and W.M.P.Nos. 2742, 2747 & 2748 of 2023
1.H.M.Shamsudeen
2.Mohammed Ayub
3.K.M.Abdul Jaleel
4.P.M.U.Mohamed Abdul Kareem
5.M.B.A.Jamal Mohammed
6.M.A.Meera Hussain
7.K.A.M.S.Omar .. Petitioners
Versus
The Chief Executive Officer
Tamil Nadu Wakf Board
No.1, Jaffer Syrang Board
Vallal Seethakathi Nagar
Chennai - 1 .. Respondent
Prayer:Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari, to call for the records of the respondent dated
10.01.2023 in Na.Ka.No.11351/09/B9/Che and quash the same.
For Petitioner : Mr.N.A.Nassir Hussain
For Respondent : Mr.Abdul Mubeen
1/8
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W.P.No.2657 of 2023
ORDER
This Petition has been filed challenging the show cause notice of the
respondent respondent dated 10.01.2023 in Na.Ka.No.11351/09/B9/Che and
quash the same.
2. The main ground on which this writ petition is filed is that the
respondent has no power to initiate the proceedings for removal of
Muthavalli. According to him, the Wakf Board only has the power under
Section 64 of the Wakf Act. Therefore, it is the contention that the show
cause notice has been proceeded as to why proceedings under Sections 44,46
& 64 of the Waqf Act, 1995 (in short “Act” from hereafter). Questioning the
competence of the respondent, this writ petition has been filed.
3. The learned counsel for the petitioner vehemently contended that the
respondent has no power to initiate such proceedings for removal of
Muthavalli. Only the Board has the power for removing Muthavalli under
Section 64 of the Act. It is also his contention that there is no delegation of
powers to the first respondent under Section 27 of the Act. Therefore, the first
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W.P.No.2657 of 2023
respondent cannot assume the role of the Board and issue a notice for
initiation of the enquiry for removal of Muthavalli and he also placed reliance
on the judgment of this Court in a similar writ petition of this Court in
W.P.No.10539 of 2018, wherein, this Court has held that only the Board can
take disciplinary action against the Muthavali, whereas, notice has been
issued by the respondent/Chief Executive Officer, when the Board was not
constituted. Therefore, only a duly constituted Board can take action under
Section 64 of the Act. On that ground, the impugned notice ought to be
quashed.
4. Mr.Abdul Mubeen, learned counsel takes notice for the respondent.
According to him, a mere show cause notice is issued, as per the resolution
passed by the Board and the respondent/Chief Executive Officer has not
initiated the proceedings on his own for removal of Muthavalli. He has just
sought an explanation with regard to the accounts and budgeting etc.
According to him, Section 25 of the Waqf Act confers the power of the CEO
for investigating in respect of Waqf properties, inspecting or causing
inspection of waqf properties and accounts, records, deeds or documents,
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W.P.No.2657 of 2023
doing generally of such acts as may be necessary for the control, maintenance
and superintendence of Waqf. Hence, it is the contention that it is merely a
show cause notice. Therefore, the same cannot be challenged.
5. I have perused the entire materials. What has been challenged is
merely a show cause notice issued by the respondent/Chief Executive Officer.
On perusal of the impugned show cause notice, it would indicate that it was
issued pursuant to the resolution passed by the Wakf Board dated
21.12.2022, to take action with regard to certain irregularities committed by
the petitioners. Accordingly, the impugned show cause notice is issued
seeking explanation within fifteen days failing which action under Sections
44, 46, 61 & 64 of the Act will be initiated as against the petitioners. Merely,
because, there is a reference as to the action to follow in the event of failure
to furnish explanation that does not mean, the Chief Executive Officer /
respondent himself has initiated proceedings for removal of Muthavalli.
6. It is relevant to note Section 25 of the Act would deal with the duties
and powers of Chief Executive Officer.
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W.P.No.2657 of 2023
25.Duties and powers of Chief Executive Officer.
(1) Subject to the provisions of this Act and of the rules
made thereunder and the directions of the Board,
functions of the Chief Executive Officer shall include--
(a) investigating the nature and extent of auqaf and
waqf properties and calling whenever necessary, an
inventory of waqf properties and caling, from time to
time, for accounts, returns and information from
muthawallis;
(b)inspecting or causing inspection of waqf
properties and accounts, records, deeds or
documents relating thereto;
(c) doing generally of such acts as may be necessary
for the control, maintenance and superintendence of
auqaf.
(2) In exercising the powers of giving directions under
sub-section(1) in respect of any waqf, the Board shall act
in conformity with the directions by the waqf in the deed
of the waqf, the purpose of waqf and such usage and
customs of the waqf as are sanctioned by the school of
Muslim law to which the waqf belongs.
(3) Save as otherwise expressly provided in this Act, the
Chief Executive Officer shall exercise such powers and
perform such duties as may be assigned to him or
delegated to him under this Act.
7. Section 27 of the Act deals with the Delegation of powers by the
Board.
27.Delegations of powers by the Board.--The
Board may, be a general or special order in writing,
delegate to the Chairperson, any other member, the
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W.P.No.2657 of 2023
Chief Executive Offficer or any other officer or servant
to the Board or any area committee, subject to
conditions and limitations as may be specified in the said
order, such of its powers and duties under this Act, as it
may deem necessary, except the powers and functions of
the Board mentioned under clauses (c),(d),(g) and (j) of
sub-section (2) of section 32 and section 110.
8. The delegation of the power to exercise powers under clauses (c),
(d), (g) & (j) of sub-section (2) of section 32 and and Section 110 is
necessarily conferred only to the Board. Admittedly, the resolution has been
passed by the Board authorising the Chief Executive Officer/respondent.
Pursuant to the same, the impugned show cause notice has been issued.
Therefore, instead of giving explanation, one cannot challenge the show cause
notice merely under the pretext that same has been issued for removal of
Muthavalli. No doubt, only the Board has the power to remove Muthawallis
under Section 64 of the Act. When such situation is not reached, merely on
the apprehension, the show cause notice cannot be challenged.
9. Accordingly, I do not find any merits in the case and the same is
liable to be dismissed. Let the Board in the event of any action to initiate
proceedings for removal of Muthavalli, follow the procedure laid under
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W.P.No.2657 of 2023
Section 64 of the Act.
10. With the above observations, this writ petition stands dismissed.
No costs. Consequently, connected miscellaneous petitions are closed.
02.02.2023
dhk
Index : Yes / No
Speaking Order : Yes / No
To
The Chief Executive Officer
Tamil Nadu Wakf Board
No.1, Jaffer Syrang Board
Vallal Seethakathi Nagar
Chennai - 1
N.SATHISH KUMAR, J.
https://www.mhc.tn.gov.in/judis
W.P.No.2657 of 2023
dhk
W.P.No.2657 of 2023
02.02.2023
https://www.mhc.tn.gov.in/judis
