Case Background
The case arose from management of a Shia waqf estate known as Bibi Fatma and others waqf estate, bearing no. 15/Patna, situated at Diwan Mohalla, Dulli Ghat, Patna City.
The petitioner was appointed as mutawalli of this waqf estate in 1994, being described as the successor and heir of the dedicator. He claimed that for 26 years he had managed the property properly and that no complaint had ever been made against him.
In 2019, he undertook works such as replacing the old gate at the entrance of the mosque with a new gate and doing minor repairs to the front wall of the Imambara, along with whitewashing the mosque and Imambara. According to him, these were simple maintenance activities that did not require any prior permission from the Bihar State Shia Waqf Board.
The petitioner further alleged that the waqf property had become valuable over time and that “many people were having evil eye” on the estate. He accused the Board of having illegally sold or permanently leased many valuable waqf properties in Patna to private builders despite the Government of Bihar allegedly refusing permission. He suggested that the Board wanted to do something similar with this estate and that his opposition prevented this.
Against this background, disputes began between the petitioner and the Board over alleged illegal construction and financial irregularities. The Board first issued notices, then ordered an inquiry, and finally resolved to remove him as mutawalli and to appoint an assistant of the Board as manager of the estate. The petitioner challenged these steps before the Patna High Court in a writ petition.
What the Court Examined and Decided
The writ petition was filed seeking quashing of the Board’s notification dated 06.08.2020, by which the petitioner was removed from mutawalliship and a Board assistant was appointed as manager. He also sought quashing of Board resolution no. 10 dated 17.06.2020 containing the decision to remove him from the waqf estate’s mutawalliship.
The petitioner argued that the Board had wrongly invoked section 64(a) and (g) of the Waqf Act, 1995. These clauses allow removal of a mutawalli who has been convicted more than once under section 61, or who has failed without reasonable excuse to maintain regular accounts or submit yearly statements for two consecutive years.
According to the petitioner, the only allegation ever communicated to him was in a show cause notice dated 29.04.2020. That notice, reproduced in the judgment, accused him of making “illegal construction” on the waqf land without complying with earlier Board directions to submit a proposed development plan.
He replied on 04.05.2020 saying that he was only doing minor repair and whitewashing work and therefore did not need Board permission under any Act, rule or regulation. He claimed that he received no further communication and that any subsequent inquiry had been conducted behind his back.
On 16.06.2020, the Government of Bihar issued a gazette notification regarding election of the Board. The very next day, on 17.06.2020, the Board met and passed resolution no. 10, deciding to remove him from mutawalliship under section 64(a) and (g). The formal notification dated 06.08.2020 followed after about two months.
The petitioner’s key plank was that he had never been convicted of any offence under section 61, nor accused through notice of failing to maintain or submit proper accounts. He therefore claimed that the impugned order was “perverse”, beyond the grounds allowed by section 64, and violative of natural justice.
He further contended that any Board inquiry had been held without giving him a real opportunity to participate, and hence stood vitiated. On this basis he argued that the alternative remedy of approaching the Waqf Tribunal under section 83 of the Waqf Act was not efficacious, because the case involved breach of natural justice. He relied on the Supreme Court’s decision in Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1, where writ petitions were held maintainable despite alternative remedies in certain situations.
On the other side, the Bihar State Shia Waqf Board raised a preliminary objection that the petitioner had an adequate alternative remedy before the Bihar Waqf Tribunal under section 83 of the Waqf Act. For this proposition, its counsel cited the Supreme Court judgment in Board of Wakf, West Bengal v. Anis Fatma Begum & Anr, (2010) 14 SCC 588.
On merits, the Board presented a very different picture of the petitioner’s performance as mutawalli. It asserted that he had not been discharging his duties properly from the beginning. According to the Board, several notices had been sent to him asking for yearly accounts and budgets from 1998–99 to 2009–2010 and thereafter, but he failed to submit them.
The Board said that on 15.02.2020 its Assistant-cum-Inspector inspected the waqf estate and noted serious irregularities: illegal tenancy, illegal occupancy, misappropriation of rental income, and concealment of yearly income. An inquiry report dated 24.02.2020 was prepared.
Following this, by letter dated 28.02.2020, the Board directed the petitioner to submit a correct statement of the actual income of the waqf property, warning that otherwise action would be taken. Subsequently, on 29.04.2020, the show cause notice regarding illegal construction was issued.
The Board then passed an office order dated 10.06.2020 for inspection of the waqf property under sections 64 and 71 of the Waqf Act. The Assistant-cum-Inspector again inspected the property and accounts on 15.06.2020 and submitted another inquiry report on 16.06.2020 recommending legal action.
The High Court closely examined the material to see whether notices and inquiry had in fact taken place and what they revealed.
First, the Court found that apart from the 29.04.2020 show cause about construction, there was indeed a separate show cause notice dated 28.02.2020, which the Board had placed on record. In this 28.02.2020 notice, the petitioner was confronted with a serious discrepancy: he had shown annual income of only Rs. 6,000/-, while the earlier inquiry report by the Assistant-cum-Inspector had assessed the annual income at Rs. 72,000/- based on tenancy details. The notice reminded him that under sections 50 and 64, a mutawalli must submit a correct statement of accounts and could be removed for failing to do so.
Second, the Court noted that an inquiry had been set up and that notice dated 12.06.2020 under sections 71 and 64 was issued to the petitioner. That notice informed him that Assistant-cum-Inspector Mirza Saqib Hussain was authorised to conduct the inquiry and directed the petitioner to remain present with documents, papers, witnesses, and other material at the specified time and place. A postal receipt of dispatch was on record.
The Court found that the inquiry was held on 15.06.2020, that the petitioner was present, and that several irregularities were found, including furnishing a false statement of accounts. This was supported by the detailed inquiry report dated 16.06.2020, some portions of which the judgment reproduces.
According to that report, the mutawalli had continued construction despite Board directions to submit development proposals. The inspector recorded that there were three tenants paying monthly rents of Rs. 1,000/-, Rs. 1,500/-, and Rs. 3,500/- respectively, showing annual income of about Rs. 72,000/-, whereas the statement of accounts provided by the mutawalli showed only Rs. 6,000/- annual income. The report further recounted that during inspection, when the inspector attempted to talk to tenants, the mutawalli repeatedly stopped them and allegedly threatened them not to disclose anything, indicating obstruction of inquiry.
The inspector concluded that the mutawalli was concealing income and violating sections 46, 50, 61 and 64 of the Waqf Act, 1995 and recommended action under section 64. On this basis the Board resolved on 17.06.2020 to remove the petitioner.
The petitioner, in his rejoinder, denied having received the 28.02.2020 show cause or the 12.06.2020 inquiry notice. However, the Court held that such denials raised disputed questions of fact which could not be adjudicated in writ jurisdiction under Article 226.
The Court then referred to section 64 in full, as well as sections 46 and 50, which set out the duties of mutawallis to keep regular accounts, submit full and true annual statements, carry out Board directions, and supply required information.
After comparing the statutory provisions with the facts emerging from the two show cause notices and the inquiry report, the Court held that grounds under section 64 for removal of a mutawalli did exist in this case. The concealment of income, failure to submit proper accounts and non-compliance with Board directions were directly relevant under section 64.
The Court acknowledged that the impugned order dated 06.08.2020 referred specifically to section 64(a) and (g), which deal with conviction under section 61 and failure to maintain accounts for two consecutive years. However, the Court held that even if a wrong provision had been quoted in the order, that by itself did not invalidate the decision, especially when the factual grounds clearly fell within the broader scope of section 64 and proper procedure had been followed.
Importantly, the Court noted that the petitioner had not, in his writ petition, specifically challenged or rebutted the allegations in the 29.04.2020 show cause notice or the contents of the inquiry report dated 16.06.2020 on their merits. This further weakened his case.
In the end, the Court concluded that there was no violation of natural justice, that the Board had provided notices and conducted an inquiry, and that the material justified removal under section 64. It therefore found no merit in the writ petition and dismissed it, thereby upholding the Board’s resolution and notification.
Why This Judgment Matters
This judgment is important for mutawallis, waqf beneficiaries, and waqf boards across Bihar and beyond.
First, it shows that the Patna High Court will not lightly interfere with a waqf board’s decision to remove a mutawalli when there is evidence of financial irregularity, concealment of income, or disobedience of statutory duties, provided that basic notice and inquiry requirements are followed.
Second, it underlines that merely labelling construction as “minor repairs” will not protect a mutawalli if the Board has ordered that any development must follow a formal plan and approval process. Ignoring such directions can be treated as a legal violation.
Third, the judgment highlights that mutawallis must keep honest and complete accounts and timely furnish them to the Board. Large differences between actual income and declared income, as found here, can be grounds for removal.
Finally, for those thinking of challenging waqf board decisions directly in writ jurisdiction, the case cautions that disputes about whether notices were served or what happened during an inquiry are often treated as factual questions. Such questions may be better addressed before the Waqf Tribunal rather than in a writ petition.
Legal Issues and Answers
Issue: Was the Bihar State Shia Waqf Board’s decision and notification removing the petitioner from mutawalliship of the waqf estate invalid for lack of proper grounds under section 64 of the Waqf Act or violation of natural justice?
Answer: No. The Patna High Court held that show cause notices and an inquiry were conducted, that serious accounting and management irregularities were established which fit within section 64, and that a wrong reference to specific sub-clauses did not vitiate the otherwise valid removal order. The writ petition was dismissed.
Cases Cited by the Court
- Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Others, (1998) 8 SCC 1.
- Board of Wakf, West Bengal v. Anis Fatma Begum & Anr, (2010) 14 SCC 588.
Case Details
Case Number: Civil Writ Jurisdiction Case No. 283 of 2021
Case Title: Syed Mukarram Ali v. The Bihar State Shia Waqf Board, Bihar, Patna & Ors.
Citation: 2022 (1) PLJR 588
Coram: Hon’ble Mr. Justice Mohit Kumar Shah
Date of Judgment: 24.12.2021
Advocates: Mr. Rashid Izhar, Advocate for the petitioner; Mr. Md. Anjum Akhtar, Advocate for the respondent-Board.
Nature of the Case: Writ petition under Article 226 of the Constitution of India challenging Board resolution and notification removing a waqf mutawalli and appointing a manager.
Link to Judgment: Patna High Court Judgment in CWJC No. 283 of 2021
If you found this explanation helpful and wish to stay informed about how legal developments may affect your rights in Bihar, you may consider following Samvida Law Associates for more updates.
