Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1345 (PAT)

Syed Hasan Nawab v. State of Bihar

2007-08-13

body2007
ORDER 1. Heard. 2. The petitioner asserts that he was a member of the Administrative Committee (performing function of Mutawalli) of Mir Shafaat Hussan Waqf Estate, Gaya. He has challenged the order of the Chief Executive Officer under the Waqf Act, 1995 dated 9.3.2005 by which the Secretary of the Administrative Committee was removed and directed to handover charge to a nominee of the Chief Executive Officer and also challenged Annexure 2 dated 5.5.2005 by which management of the waqf has taken over by the Chief Executive Officer and vested in one Syed Nazaf Haider Rizvi (respondent no. 3). 3. It may be mentioned that Janab Quasim Hussain Rizvi was tile Secretary of the Administrative Committee, Annexure 1, dated 9.3.2005 was issued to him and Annexure 2, dated 5.5.2005 is consequential thereto. He filed a writ petition before this Court being C.W.J.C. No. 5062 of 2005 challenging the said order but soon thereafter he died and as such by order dated 18.7.2005 the writ petition was dismissed as there was no heir to pursue the same. The present writ petition is, as stated above, by a Member of the same very Administrative Committee, which is sought to be superseded. The short challenge is to the authority of the Chief Executive Officer to pass any such order superseding the Administrative Committee. It is submitted that the power is vested in the Board in terms of Section 64 of the Act specifically. Once such power specifically conferred on a statutory authority unless so specific provided the said power cannot be exercised by implication by any other authority. 4. The power, if conferred, on the Board cannot thus be exercised by the Chief Executive Officer. On the other hand, on behalf of the Waqf Board it is submitted that in terms of Section 25(c) of the said Act, the Chief Executive Officer has power of superintendence over the management and as such has power to remove the Administrative Committee and/or Mutawalli. These are two rival contentions which have to be resolved. 5. From the scheme of the Act it is very clear that legislature has conferred the power of superseding Waqf and/or challenging the management of a waqf. The power has been specifically conferred on the Board. These are two rival contentions which have to be resolved. 5. From the scheme of the Act it is very clear that legislature has conferred the power of superseding Waqf and/or challenging the management of a waqf. The power has been specifically conferred on the Board. Once the power has been conferred on the Board, law is settled that it shall by implication claim that it is not to be exercised by any person unless so specifically authorised. If the legislature wanted to authorise the Chief Executive Officer to exercise those powers as well, it was open to them to provide so specifically. Power of superintendence is a general power whereas power to remove or supersede is a special power. Therefore, to that extent the power cannot be exercised by the Chief Executive Officer in terms of Section 25(c) of the Act. The authority to supersede and/or to remove a person from the Administrative Committee would only be exercised by the Board and not by the Chief Executive Officer, much less, in terms of Section 25(c) of the Act. That being so, on the face of it Annexure 1 and Annexure 2 being orders of the Chief Executive Officer, who has limited jurisdiction in the matter cannot be supported and are hereby quashed. 6 The caretaker, so appointed, is present. His authority depends on the orders issued by the Chief Executive Officer. This court having found that the Chief Executive Officer lacks the authority to issue direction as contained in Annexure 1 and 2, the appointment of respondent no.3 falls consequentially. 7. In view of the aforesaid facts and circumstances, the writ petition is allowed and Annexures 1 and 2 are quashed.