Hon'ble JAS RAJ CHOPRA, J. - (1.) - By this writ petition, the petitioner challenges his suspension order Annex. 3 dated 15.5.1992. He was working as Mutwalli of Masjid Mir Faiyaz Ali known as 'Miya ki Masjid'. It is said that this Masjid was built up by his forefathers and he was its heriditory Mutwalli. Earlier, his forefathers were Mutwallies. Before him, his father Intasabuila Khan was the Mutwalli and later he bacame the Mutwalli. He has been paying the Board's share regularly and, therefore, there was no reason to Suspend him from the post of Mutwalli. Earlier to his suspension, he for sometime took the cooperation of some persons but later when they tried to take undue advantage of their cooperation and tried to realisse the Waqf s income and divert it to their packets, he filed a civil regular suit for permanent injunction in the Court of Munsif City Jodhpur bearing No. 147/1990 Rajasthan Board of Waqf etc. etc. vs. Mohd. Harun etc. in which a temporary injunction was granted in favour of the petitioner on 2.2.1991 and non-petitioners in that suit were restrained from realising the rent or interfering with the Waqf's property. Those strangers also tried to appoint a committee to manage the affairs of the Masjid. Then he filed a Civil Writ Petition bearing No. 2753/1992 before this Court and this Court passed an interim order on 19.5.1992 wherein it was ordered that Status-quo regarding the management of the property as it exists today, shall be maintained. It is averred that the petitioner has now received the order No. 13615 dated 15.5.1992 whereby it is alleged that the Chairman of the Rajasthan Board of Muslim Waqf. Jaipur has suspended him. This order was received by him on 30.5.1992. Mr. Samdariya submits that order dated 15-5.92 Annex. 3 has been passed behind the back of the petitioner and it is wholly without jurisdiction because it has been issued in utter disregard of the provisions of the Act and the Rules without complying with the provisions of sub-section 4 (b) of Sec. 43 of the Waqf Act, 1954. It also deserves to be quashed on the ground that it has not been issued by the Board but by its Chairman. It is antedated and malafide and hence this writ petition.
(2.) A return has been filed on behalf of the respondents in which it has been claimed that on account of certain irregularities committed by the petitioner as regards the financial matter, he has been suspended. He has also illegally occupied a portion of the Waqf property without paying any rent and that apart, he also incurred expenses without getting the budget of the Waqf approved from the respondents and, therefore, for the better management of the Waqf pending enquiry petitioner has been suspended. It is neither antodated nor malafide. The CDnmittee was constituted after the active consultation with the petitioner and order has not been passed to bypass the stay order but it was passed earlier to it. The Chairman, vide notification da:ed 9.5.91 published in the Rajasthan Gazette, has been conferred powers on the Board by a resolution of the Board under Sec. 22 of the Act of 1954 and, therefore, the Chairman of the Board having come to know of the com mission of the gross irregularities, acts of mismanagement and financial irregularities and having received a complaint that the petitioner has occupied the Waqf property without paying any rent, thought it just and proper that the continuance of the petitioner will be detrimental to the interest of the Waqf and will prejudice the enquiry against him and, therefore, the petitioner has been suspended and the Regional Officer Shri Syed Ikramul Haque has been appointed as a temporary Mutwalli to look after the Waqf property. The suspension is an interim order, and, therefore, it cannot be challenged by way of filing a writ petition and, in this respect reliance has been placed on a S.B. decision of this Court rendered in S. Ikramul Haq Shah v. Rajasthan Board of Muslim Waqf, Jalebi Chowk, Jaipur (1). I have heard Shri K.C. Samdariya appearing for the petitioner and Mr. P.C. Sharma on behalf of the respondents. The contention of Mr. Samdariya is that the Act of 1954 does not provide for the suspension of the Mutwalli. It only confers certain powers on the Board under Section 41. Section 42 empowers the Board to appoint a Mutwalli and Sec. 43 provides for the removal of the Mutwalli and sub sec. (4) of Sec. 43 provides that no action shall be taken by the Board as regards the removal of the Mutwalli unless it holds an enquiry into the matter in the prescribed manner and the decision has been taken by a majoriy of not less than three-fourths of the members of the Board. Section 45 provides the procedure for enquiry. The suspension is a temporary removal and, therefore, it could not have been effected without holding an enquiry as envisaged by Action 43 (4) read with Section 45 and in this respect, he has placed reliance on a S.B. decision of the Karnataka High Court in Usman Saheb Shiraj Saheb Aitar vs. The Karnataka Board of Wakfs, Bangalore (2) wherein the learned single Judge held that the term "suspension" is not denned either in the Act or in the General Clauses Act. It is not a term of art. Whatever be the source of power, suspension has the effect of keeping a person removed from the office for the period the order is in force, preventing him from attending to his duties, irrespective of the nature of his duties. Thus when a mutawalli is suspended pending enquiry into complaints against him and another person is appointed in his place, both the orders have undoubtedly that effect of preventing him from attending to his duties. The dictionary meaning of "remove" supports that conclusion and, therefore, such an order cannot be made without due enquiry because that will be in contravention of Sec. 43(4) of the Act of 1954 and hence it has to be quashed. Reliance was next placed on a D.B. decision of the Patna High Court in Haji Syed Mohammad Hussain vs. State of Bihar (3) wherein it has been held that the State Govt. has no power to order direct removal of mutawalli. For removal of a Mutwalli, a procedure provided by Sec. 43 read with Secs. 45 and 63 has to be followed. Reliance has also been placed on a decision of the Kerala High Court in Adam Aboobacker Sait vs. Kerala Wakf Board (4), which relates to the powers of the Board as regards the appointment of the Mutawalli and how the Mutawalli can be removed. It has been observed by the learned Single Judge that Section 15(2) (o) does not independently gi\e the Board any substantive power to remove a Mutwalli. The Board's power to appoint or remove a Mutwalli is strictly limited to the special circumstance; mentioned under Secs. 42 and 43 read with Secs. 15, 44 and 45. There is no quarrel about the principle that if a Mutwalli is to be removed then the Board has to exercise its powers under Sec. 15(1) read with Secs. 43 and 45 of the Act of 1954 that is after holding an enquiry. Now, this has to be determined whether the suspersion is a removal. It Is true that the learned Single Judge of the Karnataka High Court in Usman Saheb Shiraj Saheb Attar's case (supra) has held that suspension is a temporary removal and, therefore, it will be in contravention of Sec. 42(4) of the Act of 1954 if the suspension has been ordered without holding an enquiry but I am unable to accept this view, taken by the learned Single Judge of the Karrataka High Court in view of the legal provisions as also the decisions of this Court. Rule 8A of the Rajasthan Wakf Rules, 1956 hereinafter referred to as the 'the Rules of 1956' provides that the Wakf Board in exercise of its powers under the Act will act as a Civil Court and will be authorised to pass any interlocutory orders. Although, the learned Single Judge of Karnataka High Court in the aforesaid case has referred to the General Clauses Act end stated that it does not define suspension but that hardly matters Whether suspension is defined by the General Clauses Act or not, is not material. What is material is that Section 16 of the General Clauses Act categorically provices that where by any Central Act or Regulation, a power is conferred on any Authority to make any appointment then unless a different intention appears, the Authority having, for the time being, power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power. Thus, the power of suspension is inherent in the power of appointment as per Sec. 16 of the General Clauses Act, 1897 and, therefore, whether General Clauses Act defines suspension or it does not, hardly matters. It categorically provides that the Appointing Authority can suspend a person who has been appointed by it. The power to appoint vests in the Central Board of Muslim Wakf, Jaipur. These powers in emergency have been delegated to the Chairman of the Board vide Notification dt. 9.05.1991. It provides that the Board in exercise of its powers under Sec. 22 of the Act of 1954 resolves to delegate its powers to the Chairman of the Board which Chairman may exercise as an emergency measure when the meeting of the Board is not practicable and that decision, taken by the Chairman on behalf of the Board will have to be confirmed by the Board in its next meeting. It was submitted by Mr. P.C. Sharma, learned counsel appearing for the respondents, that the petitioner was suspended when the Board wasn't meeting and that has not been confirmed because no meeting of the Board has taken place thereafter. Be that as it may, the learned Single Judge of this Court in S.B-Civil Writ Petition No. 202/1977 (supra) while relying on the decision rendered in Ikramul Haq Shah v. Gulam Mohinuddin and anr. 5 decided on Jan. 6, 1965, held that order of suspension of a Mutwalli is an interlocutory order and, there fore no writ petition lies against an interlocutory order. By these two decisions, this Court has taken the view that firstly the Board of Muslim Wakf has power to suspend a Mutwalli and suspension by itself is not a final order of removal but it is an interlocutory order which the Board can pass in exercise of the powers conferred on it under R. 8A of the Rules of 1956 and, therefore, the interim order, passed by the Wakq Board can neither be challenged nor interfered in a writ petition. In D.B. decision also, the observations were that it would not be proper for the Court to interfere-with the interim order of the Wakf Board under Art. 226 of the Constitution of India. A perusal of the order shows that the petitioner was not removed from the office of the Sajjadanashin. The learned Single Judge, that is, Hon'ble Acting Chief Justice Shri A.P. Sen, as he then was, observed that by a parity of reasoning, there should be no interference'with the impugned order of the Wakf Board suspending the petitioner from his office as Mutwalli, pending the enquiry under Sec. 43 of the Act of 1954 The order in question is not a final order but an interlocutory one. Thus this categorically resolves the controversy that order of suspension is not an order of removal. It is only an interim order, passed pending enquiry which is interlocutory in nature and, therefore, it cannot be interfered in a writ petition and regular enquiry as envisaged by Section 43 (4) r/w Sec. 45 of the Act of 1954 is not required to be conpleted before an order of suspension is passed and thus this (Carnataka authority has little relevance so far as the Rajasthan Courts are concerned.
(3.) NOW, it has been allegsd that it is an antedated order. This is only a bald allegation which has been refuted by the respondents in their reply. The order is dated 15.5.1992. Simply because the Regional Officer of the Board at Jodhpur had despatched the order to the petitioner from its Sojati Gate branch on 25.05.1992 which had been delivered on 27.05.1992 or which probably might have been received by the petitioner on 30.05.1992. It cannot be said that it is an antedated order. Moreover, such disputed questions of fact cannot be gone into in a writ petition and, therefore, this allegation as regards the antedating of the order, cannot be accepted. No malafides have been shown before me, that is, what interest the Chairman of the Board of the Muslim Wakf had in suspending the pstitioner. Moreover, in view of the aforesaid notification marked as Annex. R/l, the Chairman can exercise the powers of the Board and it is he who has exercised these powers as an emergency measure and, therefore, on that count, also, the impugned order cannot be interfered on the ground that it has not been passed by the Board. Reliance has been placed on certain authorities which are as follows :- 1. T.E. Mohammed Shareef vs. The Superintendent (Wakfs), Central Zone and c thers (6). 2. Andhra Pradesh Wakf Board vs. Mohd. Hidayatullah (7). 3. M/s Parry and Co. Ltd. vs. PC Pal and Ors. (8). 4. Dr. O.C. Mohammed Hashim vs. Tamil Nadu State Wakf Board and Ors. (9). In Dr. O.C. Mohammed Hashim's case (supra), it was held that neither Sec. 15 nor Sec. 45 enables the Wakf Board to dispossess a mutavalli pending any enquiry into an application for removal of the mutavalli or for framing a scheme. In Andhra Pradesh Wakf Boards case (supra), it has been held that if the mutavalli is effectively working, no recourse can be had to Section 43 or 43-A and no direction can be issued to the Board or the Managing Committee and in M/s Parry and Co., Ltd.'s case (supra), it has been held that the decision of the Tribunal should not be interfered unless the Tribunal acts in flagrant disregard of the rules of procedure or violates the principles of natural justice. The first three authorities have no application to the facts of the present case. Here is not a case of handing-over the property but it is a case of suspension of the mutawalli and making interim arrangement for management of the Wakf property by the Board and, therefore, these authorities have little application to the facts of the present case. So far as the other authorities are concerned, I have already stated above that the Chairman was well within his rights to pass the order suspending the petitioner and he had passed this as an interim measure and this being an interlocutory order, cannot be interfered in a writ jurisdiction and, therefore, under these circumstances, it cannot be held that this order has been passed simply to bypass the stay order, passed by this Court on 19.5.1992. That was a case where strangers, accordirg to the petitioner, had formed some committee and, therefore, an order was issued to maintain status quo regarding the management of the property. What rights he gets through this order as against the order that has been passed against the Wakf Board, can be decided in S.B. Civil Writ Petition No. 2753/92 which is still pending before this Court but this much is clear that the order of suspension which has been passed by the Chairman of the Board of Muslim Wakfs, Jaipur i.e. Annex.3 dated 15.5.1592 cannot be inteifued in the writ petition on the grounds that have been taken by the petitioner in his writ-petition. Consequently, this writ petition has no force and it is hereby dismissed with no orders as to costs. ;