The Allahabad High Court has set aside the order issued by Sunni Central Waqf Board Lucknow regarding the tenure of Waqf Management Committee Moradabad and has ordered to maintain the status quo.
The Division Bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar passed this order while hearing a petition filed by Committee of Management Waqf No 856, Moradabad (Now Amroha).
The Petition under Article 226 of the Constitution of India is preferred with request to issue a writ, order or direction in the nature of certiorari quashing the order dated 26.07.2023 passed by the “U.P Sunni Central Waqf Board, Lucknow” and consequential Office Memorandum dated 31.07.2023, issued by the Assistant Secretary of Waqf Board.
As per earlier order dated 10.02.2015 passed by the Waqf Board, a Committee was appointed in exercise of powers conferred under Section 67 of the “Waqf Act, 1995” by which Aslam Hussain (petitioner) was appointed as President of the Committee consisting with 10 other members to manage the affairs of the said Waqf for a period of three years.
Thereafter, the said order was notified by the Assistant Secretary of the Waqf Board vide OM dated 23.03.2015. As the term of the petitioner Committee was about to expire on 22.03.2018, it applied for extension of its term. The Chairman of the Waqf Board vide his order dated 06.03.2018 had extended the period of the Committee of Management for a further period of three years w.e.f 10.2.2018.
The said order was challenged by one Mobin Shah before the U.P Waqf Tribunal, Lucknow, which was registered as Waqf Petition of 2018 (Mohammad Mobin Shah vs U.P Sunni Central Board of Waqfs and two others) on the ground that the Waqf Board had failed to apply its judicious mind to the entire facts and circumstances of the case and relied upon the report submitted to it by an officer without giving any opportunity of hearing to Mohd Mobin Shah. The said order was also challenged on the ground of wrong findings. The main plank of argument was that the said order was passed against the will and wishes of Waqif and the appointment of the Committee by the Board as per order dated 06.03.2018 was not fair and reasonable. The same could not sustain in view of provisions contained under the Act and therefore, the order of appointment of the Committee was also liable to be set aside.
The Waqf Tribunal vide order dated 13.03.2020 had allowed the waqf petition and set aside the order dated 06.3.2018 passed by the Chairman of the Waqf Board and remitted back the matter to the Board to pass the speaking order, after giving opportunity to the parties.
While remitting the matter, in order to fill up the vacuum in the administration of the Waqf, the Waqf Tribunal further observed that the parties shall maintain status quo as on the said date, and till finalization of the proceeding. The Waqf Board upon remand had reconsidered the entire matter and passed a detailed order on 13.6.2022.
The Court noted that prior to passing an order dated 13.6.2022 the Circle Inspector was also directed to conduct a fact finding enquiry vide an order dated 25.6.2021 passed by the Chairman of the Waqf Board. The Circle Officer/Executive Officer had accorded an opportunity to Mobin Shah and Aslam Hussain (petitioner) and submitted its report on 25.8.2021. The parties had also submitted their written arguments in the said proceeding. By an order dated 13.06.2022 the Waqf Board had passed an order and approved the claim set up by the petitioner Committee for further five years. In the said proceeding, Mobin Shah had put up his claim that he is Sajjadanashin of the Dargah and also belongs to the same Fakir community of Bhure Khan, whose Mazaar (waqf) was created and therefore, he had better rights to manage the waqf. The claims set up by Mobin Shah were rejected by the Board on 13.06.2022.
In the matter, no material has been placed before the court to substantiate that the rival Committee had ever agitated against the continuance of the petitioner Committee since 10.02.2015. In response to the order of the Waqf Tribunal dated 13.03.2020 the Waqf Board had considered rival claims and accepted the claim set up by the petitioner Committee regarding its election, which was accorded due recognition by the Waqf Board on 13.06.2022 and accordingly, the publication was also made vide OM dated 15.06.2022.
The matter was remanded back by the Waqf Tribunal on 13.03.2020 and proceedings before the Waqf Tribunal continued for a substantial long two years. Even in the said proceeding, at no point of time the rival claimant had ever set up its case. Only after passing an order of extension of five years of the Waqf Board, the alleged claim was set up by the 6th respondent and for the first time, he appeared before the Waqf Board on 20.06.2022. On the said date, he filed an application dated 06.05.2022 and set up his case on the basis of election dated 06.05.2022.
The Court observed that,
In view of the foregoing discussion, it is apparent that while passing the impugned order the Board has not proceeded in consonance with the provisions under Section 67 of the Act, wherein the Board may, if it is satisfied, for reasons to be recorded in writing, that a Committee, referred to in sub-section (1) is not functioning properly and satisfactorily, or that the wakf is being mismanaged and that in the interest of its proper management, it is necessary so to do, by an order, supersede such committee, and, on such supersession, any direction of the wakf, in so far as it relates to the constitution of the committee, shall cease to have any force with further rider that before making any order superseding any committee, issue a notice setting forth therein the reasons for the proposed action and calling upon the Committee to show cause within such time, not being less than one month, as may be specified in the notice, as to why such action shall not be taken.
It is a trite law that the Court’s jurisdiction to interpret a statute can be invoked when the same is ambiguous. Whereas in the matter, there is no ambiguity in the language of the Act, which may warrant for any interpretation of the provisions contained therein. We find that in case of any eventuality or counter claim was set up by the rival Committee before the Board, it was appropriate to the Board to take recourse under Section 67 of the Act.
The Court further observed that,
Contrarily, in the matter, no proceeding has admittedly been drawn. Merely an application of the rival committee was entertained and without recording satisfaction, the proceedings were initiated even without any show cause notice as contemplated in sub-section (2) of Section 67. The entire action is vitiated on this count itself. In the Act there is no ambiguity and therefore, the objection, which has been raised and pressed by the respondent counsels that the General Clauses Act gives such a power to the Board to rescind or review, is unsustainable. The order of recognition and further extension of the petitioner Committee could be withdrawn/recalled by the Waqf Board only when such eventualities were there and at the said stage the Board was of the opinion that it had to take a recourse as contemplated under Section 67 of the Act.
Therefore, the general power under Section 21 of the General Clauses Act to rescind a notification or order has to be understood in the light of the subject matter, context and effect of the relevant provisions of the statute under which the notification or order is issued and the power is not available after an enforceable right has accrued under the notification or order.
Moreover, Section 21 of the General Clauses Act has no application to vary or amend or review of quasi judicial power. A quasi-judicial order can be generally varied or reviewed when obtained by fraud or when such power is conferred by the Act or Rules under which it is made. Relying upon the admitted facts of the case, this Court is of the opinion that the Waqf Board has exercised its power in the most arbitrary manner and without taking recourse as available under the Act.
In view of the foregoing discussion, the Court allowed the petition and the order dated 26.07.2023 passed by the Waqf Board as well as the consequential Office Memorandum (OM) dated 31.07.2023 issued by the Assistant Secretary of the Waqf Board are set aside.
“The Waqf Board is directed to pass a speaking order in relation to the appointment of the Committee of Management of the aforesaid Waqf after hearing all the parties concerned in accordance with law within six weeks from the date of receipt of certified copy of the order. Meanwhile, in order to avoid the vacuum in the administration of the Waqf, we direct that the status quo as of today shall be maintained by the parties”, the Court ordered.
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