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2007 DIGILAW 1073 (PAT)

Bibi Mahpaarah Khatoon v. State Of Bihar

2007-07-05

NAVIN SINHA

body2007
Judgment 1. Heard learned Counsel for the petitioner, learned Counsel for the Bihar State Sunni Wakf Board and the learned Counsel appearing for respondent no. 5. 2. The petitioner questions the orders dated 12.6.2002 and 28.6.2002 by which the respondent no. 2 has been appointed as Mutawalli of the wakf in question. 3. Late Hafiz Mohammad Saleem Khan executed a wakf deed on 12.7.1939. This was for the maintenance of himself followed by his wife, sons and daughters. Pursuant to his first wife having predeceased him late Hafiz Khan solemnised a second marriage with the petitioner. Fresh progeny were born from this second marriage. Late Hafiz Khan then executed a fresh wakf deed on 5.11.1990. He again made himself the Mutwalli to be followed by the petitioner and other progeny from the second marriage. The two wakf deeds executed by him were in respect of separate properties which he now considered were disproportionate. On 3.10.1994 he executed a third wakf deed equitably in respect of the entire properties comprising the two earlier wakf deeds presently at Annexure 1/A. He again made himself the Mutwalli in his life time to be followed by the descedents in the wakf deed of 1939 and 1990 separately to the extent of their respective shares. On 1.12.2001 Hafiz Mohammad Salim Khan was deceased. The controversy starts then. 4. The petitioner filed an application before the Wakf Board on 7.12.2001 to be appointed as the Mutwalli to the extent of the property dedicated to her after rearrangement by the wakf deed dated 3.10.1994. On 8.3.2002 the respondent no. 5 filed an application before the Board that he was to be appointed as Mutwalli for the properties dedicated in the deed of 1939. The application of the petitioner came to be rejected by the Chairman subsequently endorsed by the Board. 5. Sec. 13 of the Wakf Act provides for creation of a Board. The composition of the Board is dealt with in Section 14. Sec. 17 provides the manner in which the Board is required to transact the business. All decisions under the Act are to be taken by the Board by majority of votes of the members present and in the case of equality of the votes the Chairperson or in his absence the Officer presiding over the meeting shall have second or casting vote. All decisions under the Act are to be taken by the Board by majority of votes of the members present and in the case of equality of the votes the Chairperson or in his absence the Officer presiding over the meeting shall have second or casting vote. The powers and functions of the Board are dealt with in Section 32. Sublause (a) specifically provides that power to appoint and remove Mutwalli vests in the Board. 6. A counter affidavit has been filed on behalf of the Board. The Chairman of the Board rejected the application of the petitioner on 6.6.2002 which was communicated by the Secretary of the Board by order dated 12.6.2002. The counter affidavit of the Board neither places the order dated 6.6.2002 on record nor discloses the contents of the same. This Court is therefore left with the only option to test the order in view of the recitals in the communication dated 12.6.2002. The order states that the Chairman had rejected the application of the petitioner based on the legal advice that he had received. This is what came to be confirmed by the Board subsequently on 26.8.2002. Even if it is assumed that there were any powers of delegation in favour of the Chairman of the Board under Sec. 27 as was urged, though no such pleading is there, in the counter affidavit on behalf of the Board, this Court finds it difficult to sustain the impugned order on the ground that there has been no any application of mind by the statutory authority. There is no discussion of the issues, application of mind, consideration of the respective contentions or reference to the provisions of the Wakf Act which would stand violated by the wakf deed dated 3.10.1999. The Chairman appears to have abdicated his statutory duty and acted at the behest of the legal advice that he purportedly received. This is patently illegal, reference may be made to 2004(2) SCC 65 (Bahadursinh Lakhubhai Gohil vs. Jagdishbhai M. Kamalia & Others) at para 26. "26. It is also well settled that if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, the same would be ultra vires." 7. The original act itself being illegal the endorsement of the same by the Board subsequently is of little consequence. "26. It is also well settled that if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, the same would be ultra vires." 7. The original act itself being illegal the endorsement of the same by the Board subsequently is of little consequence. The illegality of the original order cannot be cured by subsequent approval of the Board. This Court therefore finds it difficult to sustain the impugned orders at Annexures 5 and 5/A. The same are accordingly set aside. 8. The matter is remanded to the Wakf Board to take fresh decision in the matter in accordance with law after issuance of notice and hearing to all concerned. Let the same be done within a maximum period of six months from the date of receipt/production of a copy of this order. 9. The writ application stands allowed to the extent indicated with the directions as contained above.