JUDGMENT Honble Mrs. Jayashree Tiwari, J.—Present writ petition has been filed by the petitioners Committee of Management, Waqf Dargah Ahmad Shah Gulab Shah, Bijnor & another against State of U.P. and others for issuance of writ, order or direction in the nature of certiorari quashing the impugned order dated 5.11.2009 passed by respondent No. 3 and also a writ of mandamus directing the respondents not to interfere in the functioning of the petitioners relating to the management affairs of waqf Dargah Ahmad Shah Gulab Shah, Bijnor. 2. Brief facts as annunciated in the petition are as follows : Waqf Dargah Ahmad Shah Gulab Shah (Waqf No. 85 Bijnor), Kiratpur, District Bijnor was created in 1991 and registered with U.P. Sunni Central Board , Lucknow as Waqf Alal-Kher (Public Waqf). Waqf Board appointed Committee of Management for managing the affairs and the property of the Waqf from time to time and the duration for such committee was one year. The Committee of Management petitioner was appointed by the Waqf Board for 2006-2007 and 2007-2008 and the petitioners have been managing the affairs of the property of the disputed waqf and there was no complaint whatever regarding its functioning and management. Then the Waqf Board appointed respondent No. 4 for managing the aforesaid affairs for a period one year. The members of the aforesaid committee headed by respondent No. 4 mismanaged and misappropriated the funds and waqf property and several complaints were made against respondent No. 4 and the aforesaid committee. On expiry of the aforesaid term of the committee headed by respondent No. 4, the Board received applications from Arshad Chaudhary and Ateeq Ahmad Chaudhary and respondent No. 4 applied for reappointment of the committee of management. On matter being enquired by the Waqf Board the report against respondent No. 4 was given by the Waqf Inspector about the misappropriation of the Waqf property and funds. Hence the application of respondent No. 4 was rejected by the Board as well as applications of Ateeq Ahmad Chaudhary and Arshad Chaudhary were accepted and appointed petitioner No. 2 as Mutwalli vide order dated 5.10.2009. The petitioner in pursuance of aforesaid order of the Waqf Board approached the Additional Survey Waqf Commissioner/Additional District Magistrate, Bijnor for taking over charge of office of Mutwalli in the alleged Waqf. The petitioner in pursuance of aforesaid order of the Waqf Board approached the Additional Survey Waqf Commissioner/Additional District Magistrate, Bijnor for taking over charge of office of Mutwalli in the alleged Waqf. Whereupon the Additional Survey Waqf Commissioner directed the Senior Waqf Inspector, Bijnor to ensure compliance for handing over the charge of Waqf in dispute to the committee of management of the petitioner. Accordingly, in compliance of the said direction the petitioner took over the charge of the office of Mutwalli and since then he was looking after the affairs and management of waqf. Order passed by the Waqf Board was neither challenged by respondent No. 4 nor any other person and hence the aforesaid order became final. However, respondent No. 4 approached respondent No. 3 Chief Executive Officer and moved an application stating therein that order dated 5.10.2009 was not issued by the order of the Chief Executive Officer, therefore the same cannot be held to be effective. The respondent No. 3 without giving an opportunity of hearing to the petitioner issued an order/letter requesting the additional Survey Waqf Commissioner that the order dated 5.10.2009 will remain ineffective till the same is not executed by him. The aforesaid order dated 5.10.2009 passed by respondent No. 3 is absolutely illegal and arbitrary and is liable to be quashed. The respondents have filed counter-affidavit denying the contentions raised in the petition and have further submitted that the duties and powers of the Chief Executive Officer are given in Section 25 of the Waqf Act,1995 as also the powers of the Chief Executive Officer in regard to the order or resolution of the Board are also given under Section 26 of the Waqf Act . 3. It is further submitted in the counter-affidavit that from the perusal of the aforesaid proviso to Section 26 of the Waqf Act it is essential that the order of waqf Board should be placed before the Chief Executive Officer for its reconsideration. It is further submitted that according to Section 30(2) of the Waqf Act all the copies issued under this Section shall be certified by the Chief Executive Officer of the Board in the manner annunciated under Section 76 of the Evidence Act, 1872. It is further submitted that according to Section 30(2) of the Waqf Act all the copies issued under this Section shall be certified by the Chief Executive Officer of the Board in the manner annunciated under Section 76 of the Evidence Act, 1872. It is further specifically stated that powers under Section 30(3) of the Act confer on the Chief Executive Officer, by Sub Section (2) may be exercised by such other officer or officers of the Board as may either generally or specially be authorised in this behalf by the Board. 4. Hence it is clear that the orders of the Waqf Board shall be certified by the Chief Executive Officer unless any officer or officer of the Board may be authorised by the Board. The Waqf Board has authorised Khalid Umar and Tajdar Alam to issue certified copy of the order of the Waqf Board. The alleged certified copy of the order dated 5.10.2009 passed by the Chairman, U.P. Sunni Central Waqf Board, Lucknow is neither issued by the Chief Executive Officer nor Assistant Secretary nor by the abovementioned officer of the U.P. Sunni Central Waqf Board and hence it cannot be held that the order passed by the Chairman, U.P. Sunni Central Waqf Board dated 5.10.2009 has been duly implemented. It is submitted that from perusal of the provisions of Section 26 of the Waqf Act it is obviously clear that object of the aforesaid sanction is that prior to the implementation of the Waqf Board all orders shall be placed before the Chief Executive Officer and the Chief Executive Officer, if he thinks, may place the same before the Waqf Board for reconsideration. As the order dated 5.10.2009 was not placed before the Chief Executive Officer prior to the issuance of its certified copy, thus it is clear violation of Section 26 of the Waqf Act. It is further submitted that it is only Chief Executive Officer who can issue a certified copy of the order and the Office Memorandum of the Waqf Board and in case, the post of Chief Executive Officer is lying vacant then in that case any other officer authorised by the Board can issue certified copy of the order. Accordingly, the order dated 5.10.2009 passed by the Chairman U.P. Sunni Central Waqf Board has not been duly executed in consonance with the provisions of law. Accordingly, the order dated 5.10.2009 passed by the Chairman U.P. Sunni Central Waqf Board has not been duly executed in consonance with the provisions of law. It is further submitted that according to the Government Order dated 12.12.2002 which is filed as annexure CA-1, only Chief Executive Officer is authorised to execute the order of the Waqf Board and the letter written by the respondent No. 3 has been rightly written and there is no error or illegality in exercising power and the writ is liable to be dismissed. 5. Against the aforesaid counter-affidavit, rejoinder affidavit has been filed by the petitioners. In their rejoinder affidavit they have denied the contentions and the legal position as mentioned in the counter-affidavit and as stated that petitioner No. 2 Mutwalli/Secretary of the Waqf Board in dispute is well acquainted with the facts as has come out in the counter-affidavit. It is further submitted that the Chief Executive Officer is appointed under Section 23 of the Waqf Act by the State Government in consultation with the Board. The powers conferred under Section 26 of the aforesaid Act on the Chief Executive Officer are special powers and can be exercised to consider the orders or resolution passed by the Board and also according to the provisions of Sub Section A to D of Section 26 of the Act. It is further submitted that there is no such provision under the Act and specially Section 26 of the Waqf Board Act according to which resolution or order of the Board cannot be implemented without consideration of the same by the Chief Executive Officer. Section 28 of the Waqf Act specifically provides that the power of the Chief Executive Officer can be exercised by him through Collector etc. with prior approval of the Board. On perusal of the alleged order it appears that the Chief Executive officer has not exercised its power conferred according to the provisions as annunciated under Section 26 of the Act or as annunciated under Section 28 of the Act and hence the order passed by the Chief Executive Officer is illegal and void. with prior approval of the Board. On perusal of the alleged order it appears that the Chief Executive officer has not exercised its power conferred according to the provisions as annunciated under Section 26 of the Act or as annunciated under Section 28 of the Act and hence the order passed by the Chief Executive Officer is illegal and void. So far as the reply to paras 5, 6 and 7 of the counter-affidavit is concerned, it is submitted that these contentions are related to the provisions contained under Section 30 of the Waqf Act, according to which Board has passed the resolution whereby Assistant Secretary of the Board was authorised to issue certified copy of the order and other record passed by the Board. Admittedly, as has also come out in the counter-affidavit in paragraph 7 that Board has authorised Khalid Umar and Tajdar Alam for issuance of certified copy of the order and therefore it cannot be said that Chief Executive Officer is not only the officer who can issue the certified copies of the order and resolution of the Board in the light of provisions mentioned under Section 30 (3) of the Act. The petitioners have filed some copies and other documents which were under signature of the Assistant Secretary to show that the Assistant Secretary was authorised by the Board to issue certified copy of the orders of the Court which are RA-1 on record. Since the Board has authorised his persons as mentioned in paragraph 5 of the rejoinder affidavit to issue certified copies of its orders and resolution and other documents hence the order dated 5.10.2009 in favour of the petitioners passed by the Board and certified copy of the same issued by the Assistant Secretary of the Board was equally and admittedly effective and duly implemented and under the circumstances, the Chief Executive Officer has no right or jurisdiction to stay the implementation of the order of the Board in exercise of power under Section 26 of the Act and the act of the Chief Executive Officer in this regard is illegal and without jurisdiction. The Chief Executive Officer is not empowered to stay the execution of the order passed by the Board in the light of the powers conferred upon him under Section 26 of the Waqf Act. The Chief Executive Officer is not empowered to stay the execution of the order passed by the Board in the light of the powers conferred upon him under Section 26 of the Waqf Act. Since there is no approval of the Board, the Chief Executive Officer has no authority to pass the aforesaid order which is under challenge. 6. We have heard learned counsel for the petitioners as well the respondents. 7. The sum and substance of the dispute in the present petition is as to whether the order dated 5.10.2009 passed by the Board the certified copy of which was issued by an officer duly authorised by the Board and not by the Chief Executive Officer can be treated to be duly effective and can it be treated as to whether the order of the Board dated 5.10.2009 has been duly implemented under law or not. It is also to be considered whether the Chief Executive Officer while exercising its power under Section 26 of the Waqf Act has authority to stay the operation of duly implemented order of the Waqf Board. 8. In this connection it will be expedient to consider the application moved by Chief Executive Officer before the Additional Survey Waqf Commissioner, Bijnor. In his application dated 5.11.2009 numbered as 6332/85 Bijnor-2009 the Chief Executive Officer has mentioned that it has come to his notice by the application of Abdul Qadir Khan that applications of applicant Ashrad and Ateeq Ahmad Khan have been rejected by the Chairman, Waqf Board vide order dated 5.10.2009 and in the Chairmanship of Arshad Chaudhary. This member of Committee of Management has been appointed till further orders. It is mentioned therein that even if the order as aforesaid has been passed on 5.10.2009 even then under Section 26 of the Waqf Act the order of the Board is not executed or implemented by the Chief Executive Officer, that order cannot be treated to be effective and he stated that due to aforesaid reason it is requested that the order dated 5.10.2009 or any order of its being executed and implemented by the Chief Executive Officer it shall remain ineffective. Thus application and the order of the Chief Executive Officer who is respondent No. 3 is under challenge in this writ petition. In this connection it will be appropriate to consider the provisions as annunciated under Section 26 of the Waqf Act. Thus application and the order of the Chief Executive Officer who is respondent No. 3 is under challenge in this writ petition. In this connection it will be appropriate to consider the provisions as annunciated under Section 26 of the Waqf Act. Under Section 26 of the Waqf Act the powers of the Chief Executive Officer in regard to the order or resolution of the Board are given under Section 26 of the Waqf Act which is as follows : The Powers of Chief Executive Officer in respect of orders or resolutions of Board Where the Chief Executive Officer considers that an order or resolution passed by the Board. (a) has not been passed in accordance with the law; or (b) is in excess of or is an abuse of the powers conferred on the Board by or under this Act or by any other law; or (c) if implemented, is likely to— (1) cause financial loss to the Board or to the concerned waqf or to the waqf’s generally; or (2) lead to a riot or breach of peace; or (3) cause danger to human life, health or safety; or (d) is not beneficial to the Board or to any waqf or to waqf’s generally, he may, before implementing such order or resolution place the matter before the Board for its reconsideration and, if such order or resolution is confirmed by a majority of vote of the members present and voting after such reconsideration, refer the matter to the State Government alongwith his objections to the order or resolution, and the decision of the State Government thereon shall be final. 9. Thus in accordance with the powers conferred under Section 26 of the Waqf Act in case abovementioned exigencies as mentioned in Sub Clause a, b,c and d occur, only in those cases the Chief Executive Officer may before implementing the order or resolution have powers to place it before the Board for reconsideration. In case of reconsideration the Board again passes the resolution then he has the power to refer the matter to the State Government alongwith his objection and the order of the State Government shall be final. A perusal of the order dated 5.11.2009 shows that none of these exigencies are reported to be present in which there may be any necessity for refering the matter to the Board for reconsideration of the resolution. A perusal of the order dated 5.11.2009 shows that none of these exigencies are reported to be present in which there may be any necessity for refering the matter to the Board for reconsideration of the resolution. It is also noteworthy that no reference under Section 26 of the Act as required to have been made to the Board is made, instead the reference has been made to the Collector/ Additional Survey Waqf Commissioner. In these circumstances, a perusal of the provision of Section 26 as well as the perusal of the letter dated 5.11.2009 it comes out that none of the exigencies were there to which the Chief Executive Officer has occasion to make a reference before the Board or in case of reaffirmation by the majority of the members of the Committee of Management of the Waqf Board if reference to the State Government exist. The objections raised in the application is only to the execution or implementation of the order or resolution of the Board and said that its implementation is ineffective as it is not executed by the Chief Executive Officer. So it is obviously not covered under Section 26 of the Waqf Act. 10. So far as the powers of the Execution or implementation of the resolution of the Board is concerned, attention was drawn by the learned counsel for the respondents on Section 30 of the Waqf Act. Section 30 provides for inspection of the record and as also comes out from the material on record of the petition that the prayer has been made by the newly appointed Chairman. For delivery of the charge to the newly appointed Chairman which is annexure 3 to the writ petition in which it has been mentioned that Arshad Chaudhary had given a letter and requested that charge of aforesaid Waqf be delivered to him forthwith so that Waqf property may be fully protected. Upon such application of the newly elected Chairman the Additional Survey Wqqf Commissioner has directed Ahmad Khan, Senior Waqf Inspector, Bijnor to ensure the delivery of the charge to the newly elected Chairman Sri Arsad Chaudhary. Sri Arsad Chaudhary has reported vide Annexure 4 that the charge of the Waqf has been delivered and has been taken over by the newly elected Chairman of the Committee of Management. Sri Arsad Chaudhary has reported vide Annexure 4 that the charge of the Waqf has been delivered and has been taken over by the newly elected Chairman of the Committee of Management. It is the contention of respondent No. 3 vide letter dated 5.11.2009 that this implementation of the Board has not been made by the Chief Executive Officer instead it has been implemented by Sri Ahmad Khan. So it cannot be held that the resolution of the Waqf Board has been admittedly implemented. In this connection it will be appropriate to consider the provisions as annunciated under Section 30 of the Waqf Act which lays as follows : (1) The Board may allow inspection of its proceedings or other records in its custody and issue copies of the same on payment of such fees and subject to such conditions as may be prescribed. (2) All copies issued under this section shall be certified by the Chief Executive Officer of the Board in the manner provided in Section 76 of the Indian Evidence Act, 1872 (1 of 1872). (3) The powers conferred on the Chief Executive Officer by sub-section (2) may be exercised by such other officer or officers of the Board as may either generally or specially be authorised in this behalf by the Board.” 11. So the contention as raised in the application dated 5.11.2009 which is annexure 5 it is only the Chief Executive Officer who can implement the resolution of the Board is not the correct position as annunciated under sub-clause (3) of Section 30 which provides that powers of the Chief Executive Officer may be exercised by such other officer or offices of the Board as may either generally or specially be authorised in this behalf by the Board. Thus it is clear that powers of implementing and issuing the certified copies conferred on the Chief Executive Officer of the Board is not exclusive. In case of any officer either generally or specially authorised by the Board can also exercise this power . So this contention as raised in annexure 5 becomes fallacious. The petitioners in their rejoinder affidavit have controverted the contentions raised in the counter-affidavit that it is only the Chief Executive Officer who can implement the order or resolution of the Board. So this contention as raised in annexure 5 becomes fallacious. The petitioners in their rejoinder affidavit have controverted the contentions raised in the counter-affidavit that it is only the Chief Executive Officer who can implement the order or resolution of the Board. The legislative scheme is not upto that point but it has provided for exercise of this power by some other officer generally or specially authorised by the Board. In para 11 of the rejoinder affidavit it has been mentioned that there is no provision in the Section 26 Waqf Act wherein the order or resolution of the Board cannot be implemented without approval of the Chief Executive Officer. It is also submitted that under Section 30(3) the Board has passed resolution whereby the Assistant Secretary of the Board was authorised to issue certified copies of the orders passed by the Board and other records. They have filed some annexures RA-1in which the orders and resolutions of the Board the certified copies were issued by Sri Khalid, Assistant Secretary of the Board and another copy at page 13 which has been issued by Sri Khalid, Assistant Secretary and yet another copy dated 18.12.2008 by Sri Khalid. Thus, he has emphasised on the point that the Assistant Secretary Sri Khalid was authorised to issue the certified copies of the resolution of the Board. This factum has also been admitted in the counter-affidavit in para 7 wherein it has been stated that the Waqf Board has authorised Sri Khalid Umar and Sri Tajdar Alam, officers to issue certified copy of the Waqf Board. 12. Thus considering the entire provisions, the contention of the parties, the fact of authorisation by Sri Khalid Umar and Sri Tajdar Alam, officers of the Waqf Board for issuing certified copies of the order of the Waqf Board as well as the documents filed as RA-1 all these things show that any other officer duly authorised can issue the certified copies of the resolution of the Board. If that be the position in accordance with Section 30(3), it will be treated that the resolution of the Board was duly implemented and contention raised as Annexure 5 by respondent No. 3 becomes forceless and baseless. 13. Under the circumstances, the writ petition succeeds and is allowed. If that be the position in accordance with Section 30(3), it will be treated that the resolution of the Board was duly implemented and contention raised as Annexure 5 by respondent No. 3 becomes forceless and baseless. 13. Under the circumstances, the writ petition succeeds and is allowed. The order/letter dated 5.11.2009 issued by respondent No. 3 is hereby quashed and it is directed that respondents No. 3 & 4 shall not interfere in the functioning of the management Waqf Dargah Ahmad Shah Gulab Shah (Waqf No. 85 Bijnor) Kiratpur, District Bijnor. ————