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2008 DIGILAW 1931 (ALL)

S. M. AHMAD HASAN v. SHIA CENTRAL BOARD OF WAQFS.

2008-09-11

A.P.SAHI, ASHOK BHUSHAN

body2008
JUDGMENT By the Court.—Heard learned counsel for the petitioners and learned counsel for the respondents. 2. An amendment application has been filed praying that the writ petition may be permitted to be amended by adding a relief No. E to the writ petition. The amendment application as prayed for, is allowed. Learned counsel for the petitioners may carry out the amendment in the prayer of the writ petition during the course of the day. 3. Sri Haider Hussain appears for the respondent Nos. 1 and 2. Sri S.F.A. Naqvi appears for the respondent No. 3. Learned counsel for the parties are agreed that this petition be disposed of without calling for any further affidavits. 4. By this writ petition, the petitioners pray for quashing the entire proceedings before the respondent Nos. 1 and 2 on the basis of the order dated 8.2.2008 in respect of Waqf Sughra Begum 1/69 Qurra-1 situated in Mauza Babraula, Tahsil Gunnaur district Badaun. By another relief the petitioners have prayed for quashing the order dated 1.9.2008 passed by the respondent No. 2 in respect of Waqf Sughra Begum 1/69 Qurra-1 situated in Mauza Babraula, Tahsil Gunnaur district Badaun. 5. We have heard learned counsel for the parties and perused the records. 6. By the order dated 1.9.2008 it has been directed that the entries of the Register Waqf as prayed be deleted from the Waqf Sughra Begum Qurra-1, Aligarh. The conclusion of the order dated 1.9.2008 is being quoted below : “I therefore, being fully satisfied by the objections of S.M. Sajid Hasan dated 8.2.2008 with all evidences attached thereto and allow the application and direct the office to correct the entries of the Register.” 7. The issue before the Board was with regard to entries of Khasra No. 151/1 and 166 Mauza Babraula Pargana Asadpur Tehsil Gunnaur district Badaun which was earlier entered in Board register of Waqf as Waqf property. The District Magistrate initiated certain proceedings with regard to which a Writ Petition No. 61571 of 2007, Syed Sajid Hasan and others v. State of U.P. and others was filed, which was disposed of by the Division Bench vide its judgment and order dated 13.12.2007. Copy of the order passed by the Division Bench dated 13.12.2007 has been annexed as CA-1 to the short counter affidavit filed by the respondent Nos. 1 and 2. Copy of the order passed by the Division Bench dated 13.12.2007 has been annexed as CA-1 to the short counter affidavit filed by the respondent Nos. 1 and 2. The Division Bench of this Court disposed of the said writ petition observing that District Magistrate, Badaun shall not proceed any further with reference to the notice dated 8.10.2007 and further observed that the Waqf Board may examine the matter and pass appropriate orders. 8. Learned counsel for the petitioners contends that the order dated 1.9.2008 has been passed directing the deletion of the property from the register of the Waqf Board but no reason has been given for the decision. We have perused the order dated 1.9.2008. A perusal of the order indicates that in the entire order no reason has been given in the order for deletion of the property. The observation made in the order, cannot be said to be a reasoned order. 9. The Apex Court in para 28 of AIR 1974 SC 87 , Union of India v. M.L.Capoor, has held as to why reasons should be recorded while passing an order. The relevant extract of the decision is quoted below : “ .... Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable .........." 10. Further recently, the apex Court in the case of Ran Singh and another v. State of Haryana and another, 2008 (4) SCC 70 in para 10 has laid down as follows : “10. “5 .... Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, ... The absence of reasons has rendered the (High Court’s Judgment) not sustainable ... 6 ..... Even in respect of administrtative orders, Lord Denning, M.R. in Breen v. Amalgamated Engg. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, ... The absence of reasons has rendered the (High Court’s Judgment) not sustainable ... 6 ..... Even in respect of administrtative orders, Lord Denning, M.R. in Breen v. Amalgamated Engg. Union observed :(AII ER p.115h) The giving of reasons is one of the fundamentals of good administration.’ In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed: ‘Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.’ Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking­out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi-judicial performance.” 11. The order which is claimed to be passed by the Board having been passed without indicating any reason cannot be sustained and deserves to be set aside. Reference may be had to Order XX Rule 5 of C.P.C. which is quoted below : “Rule 5. Court to state its decision on each issue.—In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon anyone or more of the issue is sufficient for the decision of the suit.” 12. Even though the said provisions may not strictly apply but the principles laid down therein are attracted. We are supported in our view by the following observations of this Court in the case of Kalika v. D.D.C., 1977 RD 5 para 5 : “ ... Even though the said provisions may not strictly apply but the principles laid down therein are attracted. We are supported in our view by the following observations of this Court in the case of Kalika v. D.D.C., 1977 RD 5 para 5 : “ ... In Dallo v. Jagan Lal, A.I.R. 1928 All 688, it was held that a judgment which merely says ‘I disbelieve the defence. Claim proved and decreed with costs’ and does not contain the points for determination and consequently without any decision on such points, is no judgment in fact ...." 13. In view of what has been stated above, the order dated 1.9.2008 is set aside. It shall be open to the Board to pass a fresh order after hearing both the parties. It is made clear that it shall further be open to the parties to raise all the pleas and objections as available to them under law. 14. The writ petition is allowed. No order as to costs. ————