O.P. (Wakf). No.26 of 2017 (R) & W.P.(C).14020 of 2017

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 29TH DAY OF JUNE 2017/8TH ASHADHA, 1939 OP (WAKF).No. 26 of 2017 (R) ----------------------------- PETITIONER(S): ------------- - 1.M.A. NAZAR, S/O.K.M.AHAMED MANALIL VEEDU, MANJALY MANNAM P.O, ERNAKULAM DISTRICT. ## 2.M.H.SHANAVAS, S/O.HAMEED MATTATHIL, PARAPPURAM MANJALY, MANNAM P.O, ERNAKULAM DISTRICT. ## BY ADV. SRI.P.K.MOHAMMED PUZHAKKARA RESPONDENT(S): -------------- ## 1.MANJALY MUSLIM JAMA-ATH REPRESENTED BY ITS PRESIDENT A.M.IBRAHIMKUTTY S/O.MOIDEEN, ERAKKATH VEEDU, MANJALY MANNAM P.O, N.PARUR, PIN-683520 2.MOHAMMED ASIF, HEAD CLERK KERALA STATE WAKF BOARD VIP ROAD, KALOOR, KOCHI-682017 ADMINISTRATOR, MANJALY MUSLIM JAMA ATH MANJALY,MANNAM P.O, N.PARUR ## 3.KERALA STATE WAKF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, KOCHI-682017 R1 BY ADV. SRI.T.H.ABDUL AZEEZ R3 BY SRI.K.SHIBILI NAHA, STANDING COUNSEL THIS OP (WAKF) HAVING BEEN FINALLY HEARD ON 29-06-2017 ALONG WITH W.P.(C).14020/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(WAKF).26/2017 ## APPENDIX EXT.P1:TRUE COPY OF THE ORDER IN O.P.NO.40/2010 DATED 9.8.2013. EXT.P2:TRUE COPY OF THE FIR NO.0578/2015 OF ALUVA WEST POLICE STATION DATED 2.8.2017. EXT.P3:TRUE COPY OF THE ORDER DATED 17.1.2017 IN O.P.40/2010. EXT.P4:TRUE COPY OF THE REPORT DATED 9.2.2017 OF THE ADMINISTRATOR APPOINTED BY THE WAKF BOARD. EXT.P5:TRUE COPY OF THE FIR IN CR.NO.0142/2017 OF ALUVA WEST POLICE STATION DATED 9.2.2017. EXT.P6: TRUE COPY OF THE REPORT OF THE ADMINISTRATOR DATED 28.2.2017. EXT.P7:TRUE COPY OF THE APPLICATION DATED 8.2.2017. EXT.P8:TRUE COPY OF THE STAY PETITION DATED 16.2.2017. EXT.P9:TRUE COPY OF THE JUDGMENT W.P.(C).6558/2017 DATED 9.3.2017. EXT.P10:TRUE COPY OF THE NOTICE OF THE MEETING DATED 10.3.2017. EXT.P11:TRUE COPY OF THE LETTER NO.A23172/CR 9.3.2017. EXT.P12:TRUE COPY OF THE NOTICE DATED 30.3.2017. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ. ==========================** ## **O.P. (Wakf). No.26 OF 2017 & W.P.(C).14020 OF 2017** **==========================** Dated this the 29[th] day of June, 2017 ## **JUDGMENT** _Ravikumar, J._ The facts and issues involved in the original petition and in the writ petition are intertwined and interrelated and therefore, they were heard jointly and are being disposed of by this common judgment. The captioned writ petition is filed by Manjali Muslim Jama-ath represented by its President, in respect of which, an order of assumption of direct management of the Waqf was passed by the Board invoking the power under Section 65 of the Waqf Act, 1995, (hereinafter, for short, referred to as “the Act” only). 2. In the captioned writ petition filed by the first respondent in O.P.No.20/2010 on the files of the Waqf Board, **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 2 Exts.P1, P3, P4 and P6 are sought to be quashed. Issuance of a writ of mandamus or any appropriate writ, order or direction prohibiting the Waqf Board, or any of his official from assuming the management of Manjali Makham and Masjid, is also sought for. In the above original petition, filed by respondents 4 and 11 in the above writ petition, the following reliefs are sought for:- “a) To issue an appropriate order or direction preventing the 1st respondent and the committee from conducting the general body meeting as scheduled vide Ext.P12 notice; b) To issue appropriate order or direction to the 2nd respondent administrator of the Waqf Board not to permit the Manjali Muslim Jama ath committee or anybody in interfering with the administration of the Manjali Muslim Jama ath;” The first and second respondents in the original petition are respectively the Waqf, viz., the writ petitioner and its administrator, who is the Head Clerk attached to office of the Kerala State Waqf Board. The petitioners in the original petition are two among the 10 petitioners in O.P.No.40 of 2010 before the Waqf Board which culminated in Ext.P1 order viz., one of the orders under challenge in the writ petition also. **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 3 3. For a proper disposal of the above writ petition and the original petition, a succinct narration of relevant facts is required. Respondents 4 to 13 in the writ petition, including the petitioners in the above original petition filed O.P.No.40/2010 under Section 32 of the Waqf Act before the Waqf Board seeking the following reliefs :- “a) To direct respondent Nos.1 to 3 to take action for the renovation of the Makham situated in the Manjali Muslim Jama-ath. b) To permit the believers to offer Ziyara according to the Islamic Principles. c) To conduct annual celebration of the Valiyullahi (Urus) under the leadership of the Mahai Jama-ath committee.” For the sake of convenience, the documents are referred to hereafter in this judgment in the order they are marked in the writ petition unless otherwise specifically mentioned. O.P.No.40/2010 was heard and finally disposed of as per Ext.P1 order dated 19.8.2013. As per the same, the Waqf Board issued the following directions :- “ (i) The present committee is directed to take immediate steps to renovate the Makham situated in the Manjali Muslim Jama-ath. The renovation work has to be completed within a period of one year; **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 4 (ii) The present committee has to allow all believers to offer ziyara in the Makham and no hindrance of any sort should be made by the committee or any other person in this regard;” 4. Admittedly, those specific directions in Ext.P1 are yet to be complied with. True that the 1[st] respondent in O.P.No.40/10, viz., the then President of the Managing Committee of the writ petitioner-Waqf and also the subsequently elected office-bearers of the said committee filed applications seeking extension of time to comply with those directions, before the Waqf Board. In fact, I.A.No.35 of 2014 was filed in the said original petition seeking extension of time and after its dismissal on 30.12.2014, I.A.No.20/15 was filed seeking its review. The said interlocutory application seeking review was also rejected. In the meanwhile, the petitioners in O.P.No.40/2010 filed an application for attachment and prosecution against the respondents therein for disobedience with the directions in Ext.P1. Based on the said application, Ext.P2 notice dated 8.7.2016 was issued to the former President and the Secretary of the Committee, who were respondents 2 and 3 in O.P.No.40/2010. They were called upon to comply **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 5 with the directions in Ext.P1 order on or before 30.12.2016 and were also warned that in the event of failure to comply with those directions, prosecution proceedings under Section 61 of the Waqf Act would be initiated. It was followed by Ext.P3 notice dated 1.12.2016. In fact, it was issued to the subsequently elected President and Secretary of the 1[st] respondent committee, viz., to Sri.A.M.Ibrahimkutty and Sri.P.A.Sakeer. Later, Ext.P4 order was passed by the Waqf Board, the common respondent in both the original and writ petitions, on 17.1.2017. A perusal of Ext.P4 would reveal that the said order was passed in O.P.No.40/2010, which was already disposed of as per Ext.P1. As per Ext.P4, the Waqf Board decided to assume direct management of Manjali Makham and Manjali Muslim Jama-ath by invoking the power under Section 65 of the Waqf Act for a period of 2 years from the date of its publication in the official gazette. It was further stated thereunder that it would be extended, if found necessary. The Head Clerk of the Waqf Board Mr.Muhammed Asif K.A. (the second respondent in the original petition) was appointed as the Administrator of the said Waqf. Feeling aggrieved by Ext.P4, **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 6 the petitioner in the writ petition filed Ext.P5 revision petition under Section 65(2) of the Act before the Government. Ext.P6 is the order passed by the Government on Ext.P5 revision petition and as per the same, Ext.P4 order was confirmed. It is in the said circumstances that the writ petition has been filed challenging Exts.P1, P3, P4 and P6 and seeking further consequential reliefs. As noticed hereinbefore, the original petition has been filed to prevent the 1[st] respondent therein/1[st] petitioner in the writ petition, viz., the Manjaly Muslim Jamaath, from conducting General Body meeting as scheduled under Ext.P12 notice in the original petition. 5. For convenient sake, we will firstly consider the contentions raised in the writ petition filed by the Manjaly Muslim Jama-ath, the 1[st] respondent in O.P.No.40/2010 through its subsequently elected President Sri.A.M.Ibrahimkutty. As can be seen from prayer No.(a) in the writ petition, the order passed in O.P.No.40/2010, viz., Ext.P1 is also under challenge in this writ petition. Before adverting to further contentions raised therein, we will deal with the question whether Ext.P1 is available for challenge at this distance of time. It was passed **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 7 on 19.8.2013. True that I.A.No.35/2014 seeking extension of time stipulated thereunder was filed by the petitioner in the writ petition and the subsequently elected office-bearers of the 1[st] respondent, before the Waqf Board. After its dismissal on 30.12.2014, I.A.No.20/2015 was filed seeking review of that order. That interlocutory application was also dismissed. Taking into account the fact that Ext.P1 order was passed on 19.8.2013 and that the writ petitioner had only sought for extension of the time stipulated thereunder for complying with the specific directions issued, we are of the view that the challenge against Ext.P1 is highly belated and that cannot be entertained by this Court at this distance of time. Therefore, what survives for further consideration in the original petition is the sustainability of the challenge against Exts.P3, P4 and P6. Ext.P3 is the notice issued under Section 61 of the Act to the subsequently elected President and the Secretary of the Committee for the year 2015, namely, Mr.A.M.Ibrahimkutty and Mr.P.A.Sakeer. In fact they were elected to the aforesaid posts in September, 2015. In Ext.P3 they were directed to comply with the directions in Ext.P1 order on or before 15.12.2016 and **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 8 they were warned that they would be prosecuted under Section 61 of the Waqf Act in case of failure to comply with the directions thereunder within the above stipulated time. We will consider the sustainability of the challenge against Ext.P3 a little later. Ext.P4 is the order passed in O.P.No.40/2010 to assume the direct management of the Manjali Makham and Manjali Muslim Jama-ath under Section 65 of the Waqf Act. It is challenging the said order that Ext.P5 revision petition was filed and as already stated, as per Ext.P6 order, the revision petition was dismissed and Ext.P4 order was confirmed, by the Government. 6. To mount challenge against Ext.P4 order, various contentions have been raised by the petitioner. The core contention is that having disposed of O.P.No.40/2010 finally as per Ext.P1, the Waqf Board became functus officio and therefore an order under Section 65 of the Waqf Act, i.e., Ext.P4, could not have been passed in O.P.No.40/2010. That apart, it is contended that Exts.P2 and P3 would reveal that, action was proposed to be initiated for non compliance of with the directions in Ext.P1 under Section 61 of the Act and that by **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 9 itself would reveal that Ext.P4 was passed for non-compliance with the directions under Ext.P1 and in fact, Ext.P4 itself would reveal that the Waqf Board had entered into a finding that the Muthavalli had failed to comply with the directions in Ext.P1. The learned Senior counsel appearing for the writ petitioner submitted that in a case where the Muthavalli had failed to comply with any of the duties to be discharged in terms of the provisions under Section 50 of the Waqf Act, the Muthavalli could be removed by resorting to the provision for removal of the Muthavalli under Section 64 of the Act, more precisely under clause (j) of Sub Section 1 of Section 64 of the Waqf Act. In terms of clause (j) thereunder, a Muthavalli could be removed if he had wilfully and persistently disobeyed the lawful orders made by the Central Government, State Government or Board under any provisions of the Act or Rule or Order made thereunder. The learned Senior Counsel further contended that if disobedience with the directions in Ext.P1 is the reason for initiating action it could have been, rather, it ought to have been initiated either under Section 61 of Waqf the Act or under Section 64 of the Waqf Act. It is submitted that in fact Exts.P2 **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 10 and P3 would reveal that actions contemplated under Section 61 of the Waqf Act were proposed to be initiated. Evidently, without pursuing further with the said proposed action, invoking the power under Section 65 of the Waqf Act, the Waqf Board decided to assume direct management of the Waqf under Ext.P4. It is the contention that a bare perusal of Section 65(1) would reveal that assumption of direct management of Waqf under Section 65(1) is permissible only in a case where no suitable person is available for appointment as Muthavalli of the Waqf. At this juncture the learned counsel appearing for the Waqf Board submitted that the power which was invoked for assuming direct management of the Waqf is not the one provided under Section 65(1) and in fact, the power exercised was the one under Section 65(5) of the Act. In the contextual situation, it is relevant to refer to Section 65(5), which reads thus :- “Notwithstanding anything contained in sub-section (1), the Board shall take over the administration of a Waqf, if the Waqf Board has evidence before it to prove that management of the Waqf has contravened the provisions of this Act.” 7. The learned Senior counsel for the writ petitioner **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 11 submitted that a bare perusal of Section 65(5) of the Waqf Act would reveal that the situation for invocation of the power thereunder was not prevailing in the Juma-ath and the reason of disobedience with the directions under Ext.P1 cannot be taken as a reason for assuming direct management of the Waqf by invoking the power under Section 65(5) of the Waqf Act. That apart it is contended that if at all the said power could be exercised, an order in its invocation could not be passed in blatant violation of the principles of natural justice. The precise case of the writ petitioner is that before ordering for assuming direct management of the Waqf under Ext.P4, no notice was issued. It is also submitted that a perusal of the records would reveal that no independent proceedings have been initiated either suo motu or on any application by any other person, invoking the power under Section 65 of the Act and at any rate, no notice requiring explanation as to why it could not be invoked or any notice intimating initiation of any such proceeding under Section 65(5) was issued. 8. The learned counsel appearing for the Waqf Board, the common respondent, as also respondent Nos.4 to 13 in the writ **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 12 petition countered the contentions mainly contending that no notice or affording of an opportunity of being heard, is contemplated under Section 65(5) of the Act for invoking the power thereunder. It is submitted that to take over the administration of the Waqf, what is statutorily required is only the availability of evidence before the Board proving that the management of the Waqf had contravened the provisions of the Act. When once it is forthcoming from the evidence before the Board that the management of a Waqf had contravened the provisions of the Act, the power thereunder would be available for exercise and issuance of notice and conducting a hearing on such matter are absolutely uncalled for, it is contended. The learned Senior Counsel appearing for the writ petitioner, by way of reply, contended that the mere fact that issuance of notice or affording of an opportunity of being heard, is not expressly provided under Section 65(5) of the Act could not be a reason for violating the salutary principles of natural justice. According to the Senior Counsel, an order taking over the administration of a Waqf, in invocation of the power under Section 65(5), would invariably visit its Managing Committee **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 13 with civil consequences and therefore, the principles of natural justice should be read into the said provision that empowers a drastic action. The contra contention is nothing but a cavil, it is submitted. To buttress the said contention, the learned Senior Counsel relied on the decisions of the Honourable Apex Court in **Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I and anr. [(2008) 14 Supreme Court Cases 151]** , **Automotive Tyre Manufacturers Association v. Designated Authority and ors. [(2011)2 Supreme Court Cases 258]** , **Kesar Enterprises Limited v. State of Uttar Pradesh and ors. [(2011) 13 Supreme Court Cases 733]** , **Ashwin S.Mehta and anr. v. Union of India and ors. [(2012) 1 Supreme Court Cases 83]** , **Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise, Gauhati and ors. [(2015) 8 Supreme Court Cases 519** and also a decision of a Division Bench of this Court in **Sathyan v. Babu (2017 (2) KLT 890)** . The learned Senior counsel relied on the decision of the Honourable Apex Court in **State of Mysore v. P.R.Kulkarni and ors. [(1973) 3 Supreme Court Cases 597]** to contend that exercise of power for collateral **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 14 purpose would amount to misuse of power sufficient to vitiate an order. 9. The learned counsel for the respondents in resistance contended that the subsequently elected office bearers of the petitioner committee filed applications before the Tribunal in O.P.No.40 of 2010. Essentially, the attempt is to establish that in such circumstances they cannot be heard to raise grievance of violation of principles of natural justice. It is submitted that Ext.P4 order itself would reveal that I.A.No.35 of 2014 was filed by them in O.P.No.40 of 2010 seeking extension of the time to comply with the directions in order dated 19.8.2013. After its dismissal, I.A.No.20 of 2015 was filed seeking review of the order dated 30.12.2014 passed in I.A.No.35 of 2014. It is based on the said factual aspects that such a contention was raised by the respondents. 10. The evidence on record would reveal that the aforementioned interlocutory applications and an application filed by one M.A.Nasar and others, were all filed in O.P.40 of 2010 and that too, after its final disposal as per Ext.P4 order. At the same time, the petitioners therein had filed an **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 15 application only for attachment and prosecution. It was thereupon that Exts.P2 and P3 notices were issued, essentially directing for compliance with the order in Ext.P1, within the time stipulated thereunder and also for warning prosecution under section 61 of the Wakf Act in case of failure to comply with the directions within the stipulated time. It is thereafter that Ext.P4 order was passed, on 17.1.2017. A bare perusal of the said order would reveal that it was passed in O.P.No.40 of 2010 invoking the power under section 65 of the Wakf Act. Thus, it is obvious that Ext.P4 order was passed in O.P.No.40 of 2010 which was finally heard and disposed of as per Ext.P1 as far back, on 19.8.2013. May be, even in an original petition which was finally heard and disposed of, interlocutory applications of certain nature can be entertained. As already stated in the case on hand, application seeking extension of the time stipulated for compliance with the directions in Ext.P1, was filed consequently. No doubt that such an application can be considered despite the disposal of such an original petition. In this case, the said application viz., I.A.No.35 of 2014 was dismissed as per order dated 30.12.2014. I.A.No.20 of 2015 **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 16 was filed seeking review of the order passed on 30.12.2014 in I.A.No.35 of 2014. It is nobody's case that at any point of time, any of the parties had filed an application seeking review of Ext.P1 order before the issuance of Ext.P4 order. At the same time, it is submitted by the learned counsel for the Wakf Board that on behalf of the petitioner viz., Manjaly Muslim Jama-ath, the first respondent in O.P.No.40 of 2010, its subsequently elected president Ibrahimkutty filed an application seeking review of Ext.P1. In the same breath, the learned counsel would admit that the said application was defective and therefore, not placed before the Wakf Board for consideration. In short, the admitted position is that the order in O.P.No.40 of 2010 Ext.P1 was not reconsidered and it has become final. When that be the indisputable position obtained in this case, the question is whether Ext.P4 order passed invoking the power under section 65 of the Wakf Act, be it under section 65(1) or under section 65(5) could be sustained? 11. Essentially, the contention of the writ petitioner is that Ext.P4 order was passed in violation of the principles of natural justice inasmuch as before passing the same in **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 17 invocation of the power under section 65 of the Wakf Act, no notice was issued to the writ petitioner viz., the first respondent therein and needless to say that no opportunity of being heard was afforded. As noticed earlier, admittedly, Ext.P4 was passed invoking the power under section 65 of the Wakf Act. A perusal of section 65(1) of the Wakf Act would reveal that the power thereunder could be invoked only in a situation where no suitable person is available for appointment as Muttawalli of a wakf. We do not think that we should deal with the question whether the impugned order was passed in invocation of the said power in view of the submission made by the learned counsel for the Wakf Board that the impugned Ext.P4 order was not passed in exercise of the power under section 65(1) of the Act and that it was passed in exercise of the power under section 65(5) of the Wakf Act. 12. Section 65(5) of the Wakf Act would reveal that it empowers the Board to take over the administration of a wakf if the Board has evidence before it to prove that management of the Wakf had contravened the provisions of the Wakf Act. This power is conferred not withstanding anything contained in sub **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 18 section (1) of section 65. 13. In view of the rival contentions as adverted to hereinbefore as also in the light of the decisions referred to supra, the question to be considered is whether principles of natural justice should be read into section 65(5) of the Act. The rules of natural justice are merely a branch of the principle of ultra vires. The privy council in **A-G v. Ryan (1980) AC 718** held:- "..........it has long been settled law that a decision which offends against the principles of natural justice is outside the jurisdiction of the decision making authority". Thus, violation of natural justice makes a decision void as in any other case of ultra vires. A Division Bench of this Court referred to the said decision in **Shinu Abraham v. M.G. University (1999 (3) KLT 694)** . Paragraph 5 of the said judgment reads thus:- “The first question to be considered is what extent of the natural justice should be given in such circumstances. If action is taken without complying with the principles of natural justice, the proposed action can be set aside. It is not disputed that the action in cancelling the examination wrote by the **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 19 petitioners will affect the future of the students and it will substantially affect their rights. Even before a Century, the courts in the civilized countries (Lord Mansfield in Moses v. Macferlan (1760 (2) Burr 1005) and Spaceman v. Plumstead District Board (1885 (10) AC 229) adorned the principle that bodies entrusted with powers could not exercise it without first hearing the person who was going to suffer as a result of the orders passed by it. (See Lord Selborne’s observation in Spackman’s case is quoted by Privy Council in A-G v. Ryan (1980 AC 718) (See also Ridge v. Baldwin -1969 AC 40). ...................” A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as it were judicial. A condition requiring same degree of reasonableness will often be prescribed by statute. This is because it cannot be said that procedure is a matter of secondary importance. The procedure is but to be subject to the principles of natural justice unless it is expressly excluded. When the power is drastic only by strict procedural fairness that it could be made tolerable and sustainable. In such circumstances, when the exercise of power under a particular provision is drastic and its invocation would visit with another civil consequence, principles of natural **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 20 justice must be read into it, even if it does not enjoin for compliance with the principles of natural justice. In such circumstances, the authority empowered should satisfy that reasonable cause to believe the existence of evidence necessitated to exercise the power for passing such an order while invoking the said power. In such circumstances, disclosing existence of such reasonable cause would eschew any situation for attributing element of arbitrariness in exercise of the said power. 14. Bearing in mind the said position, we will consider the aforesaid question especially in the light of the decisions referred hereinbefore. The ratio of the decisions referred (supra) relied on by the learned counsel is that the mere absence of specific provision to issue notice or to afford an opportunity of hearing under any particular provision would not empower the authority clothed with the said power, which is drastic, to exercise such power in violation of the principle of natural justice if adverse civil consequences will flow from its exercise. A perusal of section 65(5) of the Wakf Act would reveal that it empowers the Wakf Board to take over the **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 21 administration of a wakf. The administration of wakf is actually being done by Muttawalli and in certain cases, a committee will act as Muttawalli. On a scanning of the impugned order what is forth coming is that subsequent to the final order in O.P.40 of 2010 viz., Ext.P1, the petitioners therein had filed only one application i.e. for attachment and prosecution. Evidently, thereupon, in invocation of the power under section 61 of the Act, Exts.P2 and P3 notices were issued. But at the same time, it is evident from Ext.P4 that it was not passed in the proceedings initiated in invocation of the power under section 61(1)(f) of the Wakf Act. Going by the same, if the muttawalli had failed to carry the directions of the Board or if he had failed to satisfy the Court or Tribunal and if there was no reasonable cause for his failure, he is liable to be punished with fine which may extend to Rs.10,000/- for non-compliance of clauses (a) to (d) and in case of non-compliance of clauses (e) to (h), he is liable to be punished with imprisonment for a term which may extend to six months and also with fine which may extend to Rs.10,000/-. There is no case for the first respondent that Ext.P4 order was passed under section 61(1)(f) of the Wakf Act. **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 22 Section 64 deals with the power to remove Muttawalli. Going by the said provision, notwithstanding anything contained in any other law or deed of the wakf, the Wakf Board can remove the Mutawalli from his office in situation contemplated under clauses (a) to (k) thereunder. Clause (j) reads thus_ "(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”. Sub section 3 of section 64 also assumes relevance. It reads thus:- "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.” Certainly, Ext.P4 order was not passed in invocation of the powers under section 64 of the Wakf Act. What is ultimately ordered thereunder is taking over of the management of the Board and certainly it is possible only by exercising the power under section 65 of the Act. It is pertinent to note that evenwhile referring to section 65 of the Act, it is not mentioned **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 23 thereunder as to whether it was done under sub-section (1) or sub-section (5), of the Wakf Act. We have already taken note of the submission of the learned standing counsel for the Wakf Board that it was issued in exercise of power under section 65 (5) of the Wakf Act. True that section 65(5) does not specifically contemplate issuance of notice or affording an opportunity of being heard to the management before taking over administration of the wakf from it. But, without all peradventure, one can say that taking over of the administration of a wakf from its elected committee which is acting as its Muttawalli or from a Muttawalli in exercise of the power under section 65(5) is drastic in nature. Definitely from such order adverse civil consequences will flow. When that be so, in view of the ratio of the decisions referred above, even in the absence of an express provision contemplating issuance of notice or affording an opportunity of being heard or an express provision excluding such requirements, principles of natural justice should be read into the said provision. There is absolutely no case for the first respondent that before issuing Ext.P4 order, separate independent proceedings have been **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 24 initiated and in such proceedings, writ petitioner or any of the parties to O.P.40 of 2010 was put on notice or they were afforded with an opportunity of being heard. On the other hand, a perusal of Ext.P4 would reveal that the Board has taken over the direct management of Manjaly Muslim Jama ath by invoking the power under section 65(5) of the Act for a period of two years from the date published in the official gazette. Furthermore, it was mentioned clear under that it would be extended if found necessary. Pursuant to the order passed by this Court on 21.04.2017 directing the production of notice issued under section 65(1) of the Wakf Act permitting the administrator and staff appointed by the Wakf Board to take over the direct management of the Makham, notification dated 6.3.2017 was produced along with a memo. It is stated therein that the Wakf Board had passed an order dated 17.1.2017 in O.P. 40 of 2010 taking over the administration of the Manjaly Makham and the Manjaly Muslim Jama ath as provided under section 65 of the Wakf Act upon finding that the committee was not interested in maintaining the wakf and its continuation would be prejudicial to the interest of the wakf. **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 25 15. A perusal of Ext.P4 would reveal that the said order was passed not in exercise of the suo motu power by the Wakf Board and in fact, there is no such case for the Wakf Board. A careful scanning of Ext.P4 order would reveal that it came to be passed by the Wakf Board on receipt of the application for attachment and prosecution filed by the petitioners in O.P.No.40 of 2010 and in O.P.No.40 of 2010 itself. 16. We have already taken note of the fact that in the application for attachment and prosecution filed by the petitioners virtually, the Wakf Board initiated steps, as is evident from Exts.P2 and P3. They would go to show that the President and Secretary of the committee who were respondents in O.P.No.40 of 2010 and the subsequently elected President and Secretary were issued with such notices calling them to comply with the directions in Ext.P1 within the time stipulated in the said notices and also warning them of the consequences of prosecution in case of their failure to comply with such directions within the time stipulated in the said notices. Nothing is on record which would indicate initiation of any independent proceedings leading to the passing of Ext.P4 **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 26 order. The respondents also could not establish initiation of any such proceedings. Certainly, it cannot be said that Ext.P4 order was passed on I.A.No.35 of 2014 or I.A.No.20 of 2015. At the samd time, in Ext.P4 it is stated that on the basis of the application for attachment and prosecution filed by the first petitioner in O.P.No.40 of 2010 viz., the 4[th] respondent herein and others, notice was served on the respondents therein to explain why action should not be taken against them and why an Engineer should not be appointed to prepare an estimate for the renovation of the Makkam. But, it would not indicate issuance of any intimation revealing the intention to exercise the power under Section 65(5) of the Act and calling from them any objection/explanation. When it is evident that the Wakf Board had not invoked the power to take over the administration of the writ petitioner in exercise of its power under Section 65(5) of the Act suo motu it is the bounden duty of the Wakf Board to convince this Court that it had shown procedural fairness and that the order was passed in appropriate proceedings and in accordance with law. **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 27 17. A perusal of Ext.P2 would reveal that as per the same, respondents 2 and 3 in O.P.No.40/2010 were called upon to comply with the directions in Ext.P1 on or before 30.10.2016 and as per Ext.P3, M/s A.M.Ibrahimkutty and P.S.Sakkeer who were the subsequently elected President and Secretary of the petitioner Wakf, were called upon to comply with the directions contained in Ext.P1 on or before 15.12.2016. Moreover, a perusal of Exts.P2 and P3 would reveal that they were warned that in case of their failure to comply with the directions in Ext.P1 within the time stipulated in Exts.P2 and P3, they would be prosecuted under Section 61 of the Wakf Act before the Chief Judicial Magistrate Court, Ernakulam. Certainly, that is not the action actually initiated or taken subsequently under Ext.P4. Evidently, Ext.P4 is an order passed under Section 65 of the Wakf Act and as per which the Wakf Board assumed direct management of Manjali Makkam and Manjali Muslim Jama-ath for a period of two years from the date published in the official Gazette and it was mentioned thereunder that it might be extended, if found necessary. 18. After analysing the provisions under Section 65(5) of **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 28 the Act with reference to the judgments of the Hon'ble Apex Court on the subject of the requirement to comply with the principles of natural justice, we have already come to the conclusion that if exercise of power under a particular provision is drastic in nature, in the absence of specific exclusion of the requirement to comply with the principles of natural justice, the principles of natural justice should be read in to the said provision. We have also come to the conclusion on analysing the evidence on record that in this case, prior to the passing of Ext.P4 order, in exercise of the power under Section 65(5) of the Act, no notice was issued to the writ petitioner or respondents 2 and 3 in O.P.No.40/2010 or to the other noticees in Ext.P3. A careful analysis of the procedures followed in this case would undoubtedly reveal that procedural fairness was not shown, even though the impact of the order is drastic. In this case, we have already noticed that O.P.No.40/2010 was originally disposed of as per Ext.P1 dated 19.8.2013. It is in that very same original petition that Ext.P4 order was passed again. What is stated in Ext.P4 is that O.P.No.40/2010 came up for final hearing before the Board and on the same day itself, it **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 29 was disposed of in the manner mentioned under Ext.P4 dated 17.1.2017. There is absolutely no question of hearing the matter again when the said case was already heard and finally disposed of as per Ext.P1, as far back on 19.8.2013. That apart, besides the application for attachment and prosecution, which were acted upon, as can be seen from Exts.P2 and P3, no independent proceedings have been initiated either suo motu or on an application. In short, when it is evident that procedural fairness was not shown while passing Ext.P4 and the principles of natural justice was also not complied with while issuing the same, the same is liable to be interfered with. True that the petitioner has preferred Ext.P5 before the Government which is a revision filed under Section 65(2) of the Wakf Act. On a careful analysis of Ext.P4 order, we have no hesitation to hold that the aforesaid crucial and vital aspects were not at all considered by the Government while passing Ext.P6 order. In such circumstances, the order of conferment passed by the Government as per Ext.P6 also cannot be sustained. 19. The long and short of the aforesaid discussion is that both Ext.P4 order and Ext.P6 order whereby Ext.P4 order was **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 30 confirmed are liable to be set aside and on such interference with Ext.P4 on the aforementioned specific grounds, we are of the considered view that it is only proper for us to remand the matter, for fresh consideration. In such circumstances, Exts.P4 and P6 are set aside. Consequently, there will be a direction to the Wakf Board to consider the matter in accordance with law and pass appropriate orders on any pending applications before it. We also make it clear that this will not preclude the Wakf Board from entertaining any application, if any party concerned files such application. Needless to say that any such further steps/consideration shall be made only in accordance with law. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 31 **C.T. RAVIKUMAR, J.** 32 **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** **JUDGMENT September, 2010** **O.P.(Wakf).26/2017 & W.P.(C).14020/2017** 33