Puratheel Mirkathul Islam ... vs T.K.Ahamedkutty, S/O. K.Moosa ... on 8 July, 2011

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP.No. 292 of 2011()

1. PURATHEEL MIRKATHUL ISLAM JUMA-ATH

... Petitioner

1. T.K.AHAMEDKUTTY, S/O. K.MOOSA MOULAVI, ... Respondent

2. CHIEF EXECUTIVE OFFICER,

For Petitioner :SRI.C.KHALID

For Respondent :SRI.K.M.FIROZ

The Hon'ble MR. Justice K.M.JOSEPH

The Hon'ble MR. Justice M.L.JOSEPH FRANCIS Dated :08/07/2011

O R D E R

K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- Civil Revision Petition No.292 of 2011 ----------------------------------------------- Dated 8th July, 2011.

O R D E R

Joseph, J.

This Civil Revision Petition is filed against the order passed by the Wakf Tribunal in O.A.21/2010. The petitioner filed the application under Section 83(2) of the Wakf Act, 1995 (hereinafter referred to as 'the Act'), against the order passed by the Wakf Board, directing the petitioner to produce the accounts from 2004-05 to 2007-08 before the Auditor appointed from the list of auditors prepared by the Government.

2. We heard the learned counsel for the petitioner, learned counsel for the Wakf Board and the learned counsel appearing for the first respondent.

3. Learned counsel for the petitioner would address before us the following arguments : He would submit that the proceedings were drawn on the basis of a malicious complaint of the first respondent, who was the former Vice President of the Puratheel Mirkathul Islam Juma-ath Committee, addressed to the Wakf Enquiry Commission. It is submitted that the C.R.P. 292/11 2

Commission, suo motu referred the matter to the Wakf Board and there is no power for the Commission to do that. The further ground urged is that actually, the accounts of the wakfs had been audited through private auditors appointed by them and a second audit is not necessary. The injustice on account of the expenses that would be incurred, following the second audit, as ordered, is also highlighted.

4. Learned counsel for the Wakf Board would point out that there is no merit in the ground that the action was initiated on suo motu reference by the Commission. He would point out that the Wakf Board is charged with the statutory duty to supervise the administration of Wakfs, under Section 32 of the Act. In particular, he would highlight Section 32(2)(m). Section 32(1) and Section 2(m) read as follows : "32. Powers and functions of the Board --(1) Subject to any rules that may be made under this Act, the general superintendence of all wakfs in a State shall vest in the Board established or the State: and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the wakfs under its superintendence are properly C.R.P. 292/11 3

maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended : Provided that in exercising its powers under this Act in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the school of Muslim law to which the wakf belongs

(2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be-- (m) to inspect, or cause inspection of, wakf properties, accounts, records or deeds and documents relating thereto."

5. Learned counsel for the first respondent would bring to our notice Section 47 of the Act. Section 47 reads as follows :

"47. Audit of accounts of wakfs --(1) The accounts of wakfs submitted to the Board under Section 46 shall be audited and examined in the following manner, namely:--

(a) in the case of a wakf having no income or a net annual income not exceeding ten thousand rupees, the submission of a statement of accounts shall be a sufficient compliance with the provisions of section 46 and the accounts of two per cent of such wakfs shall be audited annually C.R.P. 292/11 4

by an auditor appointed by the Board;

(b) the accounts of the wakf having net annual income exceeding ten thousand rupees shall be audited annually, or at such other intervals as may be prescribed, by an auditor appointed by the Board from out of the panel of auditors prepared by the State Government and while drawing up such panel of auditors, the State Government shall specify the scale of remuneration of auditors;

(c) the State Government may, at any time cause the account of any wakf audited by the State Examiner of Local Funds or by any other officer designated for that purpose by that State Government;

(2) The auditor shall submit his report to the Board and the report of the auditor shall among other things, specify all cases of irregular, illegal or improper expenditure or of failure to recover money or other property caused by neglect or misconduct and any other matter which the auditor considers it necessary to report; and the report shall also contain the name of any person who, in the opinion of the auditor, is responsible for such expenditure or failure and the auditor shall in every such case certify the amount of such expenditure or loss as due from such person.

C.R.P. 292/11 5 (3) The cost of the audit of the accounts of a wakf shall be met from the funds of that wakf:

Provided that the remuneration of the

auditors appointed from out of the panel drawn by the State Government in relation to wakfs having a net annual income of more than ten thousand rupees but less than fifteen thousand rupees shall be paid in accordance with the scale of remuneration specified by the State Government under clause (c) of sub-section (1):

Provided further that where the audit of the accounts of any wakf is made by the State Examiner of Local Funds or any other officer designated by the State Government in this behalf, the cost of such audit shall not exceed one and a half per cent. Of the net annual income of such wakf and such costs shall be met from the funds of the wakfs concerned." It is also necessary to refer to Section 46, which reads as follows :

"46. Submission of accounts of wakfs.--(1) Every mutawalli shall keep regular accounts. (2) Before the 1st day of May next, following the date on which the application referred to in Section 36 has been made and thereafter before the 1st day of May in every year, every mutawalli of a wakf shall prepare and C.R.P. 292/11 6 furnish to the Board a full and true statement of accounts, in such form and containing such particulars as may be provided by regulations by the Board, of all moneys received or expended by the mutawalli on behalf of the wakf during the period of twelve months ending on the 31st day of March, or, as the case may be, during that portion of the said period during which the provisions of this Act, have been applicable to the wakf: Provided that the date on which the annual accounts are to be closed may be varied at the discretion of the Board."

Therefore, the scheme of the Act would appear to be in this regard that every Mutavalli must keep regular accounts. Section 50(c) declares that it shall be the duty of every Mutavalli inter alia to allow inspection of the accounts. Section 50(c) reads as follows :

"50. Duties of mutawalli-- It shall be the duty of every mutawalli ---

6. The manner of auditing and examining of accounts dealt with under Sections 46 and 47(1)(b) speaks C.R.P. 292/11 7

about the duty of the wakfs to have the audit annually or in such intervals, as may be prescribed. Nothing is brought to our notice to establish that any rules have been prescribed, by which the accounts need not be audited on an annual basis. If that be so, the accounts must be audited on an annual basis. Regarding the applicability of clause (b) of Section 47(1) also, there may not be much scope for any dispute. In this context, we extract ground 'L', which reads as follows : "The 2nd respondent ought to have borne in mind that based on the annual income of the wakf of which the petitioner committee is the Muthawalli, the audit fee payable to the Auditor granted at the specified rate of one and a half percent would come to the tune of more than Rs.1,50,000/-."

Therefore, we must proceed on the basis that clause (b) of Section 47(1) applies and the accounts must be audited annually by an Auditor appointed by the Board from out of the panel of auditors prepared by the State Government. The State Government is to prescribe the specified scale of remuneration of auditors. Section 47 also provides that the expenditure to be C.R.P. 292/11 8

incurred towards audit is to be from the funds of the wakf.

7. Therefore, there is a bounden duty on the part of the Mutawalli to submit the accounts, and the accounts must be audited, as provided in Section 47(1)(b). There is no case that this has been done for the years in question. Therefore, the mere fact that the Board passed the direction on the basis of the complaint forwarded to it by the Wakf Enquiry Commission will be besides the point. It is only a case where the Board can be taken as activised into discharging its statutory powers/duties.

8. As far as the contention that audit has been done by a Chartered Accountant is concerned, we are of the view that it is in the teeth of the statutory dictate contained in Section 47, and the said contention is only to be rejected. That it may involve further expenditure and that it is on the basis of a complaint by the first respondent would, in our view, be irrelevant. There cannot be a tinkering of the statutory command. In short, the petitioner cannot wriggle out of the statutory duties imposed, nor can it canvass for a position, C.R.P. 292/11 9

which will result in diluting or taking away the powers of the Wakf Board, which is meant to ensure that wakfs act within the scope of its duties, as enumerated in the Act. In such circumstances, we see no merit in the Civil Revision Petition and it is dismissed.

Sd/-

K.M.JOSEPH, JUDGE.

Sd/-

M.L.JOSEPH FRANCIS, JUDGE.

tgs

(True copy)

P.S. to Judge.