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2011 DIGILAW 486 (CAL)

Delanipur Mosque And Madarasa Committee v. Lieutenant Governor

2011-04-04

DEBASISH KAR GUPTA, MD.ABDUL GHANI

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JUDGMENT Debasish Kar Gupta, J. 1. THE Judgment of the Court was delivered by This appeal is preferred against an order of dismissal dated March 14, 2011 of the writ application bearing No. W.P. 1358 of 2010. THE writ petitioners/appellants filed the above application challenging an order of supersession of Delanipur Mosque and Madarasa Committee situated at Delanipur, Port Blair, South Andaman dated November 11, 2010 passed by the Andaman and Nicobar Islands Wakf Board. 2. THE appellants preferred this appeal challenging the impugned order on the following grounds: Firstly, the learned Single Judge came to an erroneous conclusion that there was no violation of the principles of natural justice in passing an order of supersession of the Committee under reference. According to the appellants, a show cause notice dated March 31, 2010 was issued by the respondent Board. THE appellants submitted a reply dated April 29, 2010. On receipt of the above reply, a notice dated July 14, 2010 was issued by the respondent Board to resolve the matter amicably. It is further submitted that from the minutes of the meeting dated July 31, 2010, it appears that the Board decided to give an opportunity to the appellants to submit written reply with reference to the show cause notice. Instead of giving that opportunity, the order of supersession was passed. Secondly, the show cause notice dated March 31, 2010 was issued by the respondent Board without jurisdiction. It is submitted on behalf of the appellants that the learned Single Judge did not take into consideration that the terms of the erstwhile respondent Board expired on February 03, 2010. It was reconstituted on June 02, 2010. Therefore, there was no legally constituted Wakf Board at the time of initiating the proceedings by issuing notice dated March 31, 2010. Thirdly, the members of the respondent Board were not appointed in accordance with the provisions of section 14 of the Wakf Act, 1995. According to the appellants, the members of the respondent Board did not possess the requisite qualifications prescribed in different sub-sections of section 14 of the Wakf Act, 1995. THE documents relating to fulfillment of requisite qualifications were not before the respondent No. 1 at the time of issuing the notification. According to the appellants, the members of the respondent Board did not possess the requisite qualifications prescribed in different sub-sections of section 14 of the Wakf Act, 1995. THE documents relating to fulfillment of requisite qualifications were not before the respondent No. 1 at the time of issuing the notification. Fourthly, since there was no validly constituted Board at the time of initiating the proceedings by issuing show cause notice under reference, the same was issued by the respondent No.3. It is further submitted on behalf of the appellants that the appointment of respondent No.3 was set aside by an order dated January 05, 2011 passed in W.P. No. 10017(W) of 2010 [K.A. Abdul Salam v. Wakf Board and Others] which was affirmed by the Division Bench of this Hon'ble Court in MAT No. 012 of 2011 [In Re: THE Lieutenant Govenor v. K.A. Abdul Salam and Others]. According to the appellants, since the appointment of respondent No.3 was not sustainable in law, the action taken by him was liable to be set aside. THE last ground for challenging the impugned order is this, the appellant No. 1 was not appointed by the Wakf. Nor the Wakf was registered under the provisions of section 36 of the Wakf Act, 1995, therefore, no step could be taken against that Committee invoking the provisions of sub-section (1) of section 67 of the Wakf Act, 1995. According to the appellants, the learned Single Judge did not take into consideration the above aspects of the matter. Reliance is placed on the decisions of T.N. Wakf Board v. Hathija Ammal, reported in (2001)8 SCC 528 , Dailpath Abasaheb Solunke v. Dr. V.S. Maharajan reported in (1990) 1 SCC 305 and Sahara India (Firm) Lucknow v. Commissioner of Income Tax Central -I reported in (2008) 14 SCC 151 in support of the submission made on behalf of the appellants. 3. IT is submitted on behalf of the respondent Nos. 2 and 3 that after issuing the show cause notice dated March 31, 2010 as also considering the reply of the appellants dated April 29, 2010, a. notice of hearing dated April 14, 2010 was issued for the purpose of giving opportunity of hearing to the appellants. 3. IT is submitted on behalf of the respondent Nos. 2 and 3 that after issuing the show cause notice dated March 31, 2010 as also considering the reply of the appellants dated April 29, 2010, a. notice of hearing dated April 14, 2010 was issued for the purpose of giving opportunity of hearing to the appellants. They appeared before the respondent Board on July 27, 2010 and the respondent authority decided to give another opportunity to the appellants to submit their written reply with reference, to the show cause notice. The decision of the Board was conveyed verbally to the appellants but the appellant did not furnish any reply. Consequent thereupon the respondent Board decided to take steps against the appellants under the provisions of section 67 of the Wakf Act, 1995 in its meeting dated July 31, 2010. Therefore, adequate opportunity, given to the appellants to defend their case. IT is further submitted on behalf of the above respondents that before the expiry of the tenure of the erstwhile board, a decision was taken in its meeting dated December 17, 2009 to initiate a proceedings against the appellants under section 67 of the Wakf Act, 1995. The respondent No.3 implemented the above decision by issuing the show cause notice dated March 31, 2010. The attention of this Court has also been drawn towards the provisions of Regulation 88 of the Andaman and Nicobar Islands Wakf Board Regulation, 1981 to show that the respondent No.3 was entitled to take the above steps. IT is further submitted on behalf of the above respondents that the name of the Masjid under reference, namely Jama Masjid, Delanipur was included in the list of Wakfs published under notification dated January 12, 1989. Therefore, the respondent Board was entitled to take steps against the appellants in accordance with the provisions of Wakf Act, 1995. 4. IT is submitted by the learned Government Pleader, appearing on behalf of the official respondents that the members of the respondent Board were appointed following the provisions of section 14 of the Wakf Act, 1995. The relevant records are also produced before this Court in support of his above submissions. We have heard the learned counsels appearing for respective parties at length and we have given our thoughtful consideration to the facts and circumstances of this appeal. 5. The relevant records are also produced before this Court in support of his above submissions. We have heard the learned counsels appearing for respective parties at length and we have given our thoughtful consideration to the facts and circumstances of this appeal. 5. WITH regard to the first ground for challenging the impugned judgment, we find that the learned Single Judge took into consideration the facts of issuing the show cause notice dated March 31, 2010, the reply dated April 29, 2010 submitted by the appellants, the notice dated July 14, 2010 for giving opportunity of hearing to the respondents. We further find from the materials on record that the respondent Board took a decision in its meeting dated July 31, 2010 to give another opportunity to the appellants to submit written reply with reference to the show cause notice. It appears from the minutes of the above meeting (At page 168 of the application bearing CAN 054 of 2011) that the above decision was communicated verbally to the appellants. It is also not in dispute that the impugned order was passed long after expiry of the aforesaid period. We do not find any substance in the submission made on behalf of the appellants that no further opportunity was given to the appellants on the basis of the above decision because there is no pleading in support of the above claim of the appellants that the above decision was not verbally informed to the appellants. In absence of any specific pleading with regard to the above question of fact, no weight age can be given to the submissions made from the Bar. Therefore, we do not find any impropriety in the decision of the learned Single Judge with regard to the above ground. 6. WITH regard to the second ground, we find from the materials on record that the show cause notice dated March 31,2010 was issued on the basis of a resolution adopted in the meeting of the Wakf Board on December 07, 2009, i.e. before the expiry of the term of the erstwhile Board. Subsequently, the decision was implemented by the respondent No.3 in accordance with the provisions of Regulation 88 of the A and N Islands Wakf Regulation, 1981 and the above provisions is quoted below: "88. Responsible for executing decision of Board etc. Subsequently, the decision was implemented by the respondent No.3 in accordance with the provisions of Regulation 88 of the A and N Islands Wakf Regulation, 1981 and the above provisions is quoted below: "88. Responsible for executing decision of Board etc. - the Secretary shall be responsible for execution of decision of the Board and the Committee" Taking into consideration the above fact and the above provision, we do not find any substance in the above ground for challenging the impugned judgment. 7. REGARDING the fulfillment of requisite qualifications by the members of Wakf Board, we find from the relevant records produced before this Court by the official respondents that the same corroborates the findings of the learned single Judge. We further find that the involvement of Janab Hamid Ali with the activities of Jama Masjid and Police Masjid, Port Blair was taken into consideration. Mohammed Tabraiz was selected under the previsions of Clause (iii) of sub-section (b) of section 14 of the Wakf Act, 1995. We do not find any substance in the submission made on behalf of the appellants that he did not fulfill the eligibility criteria. It is not in dispute that there was no existence of Bar Council of Union Territory of A and N Islands. Therefore, the respondent authority was left with no other option but to appoint an eminent legal practitioner of the Union Territory of A and N Islands. It was permissible under the provisions of sub-section (3) of section 14 of the Wakf Act, 1995. We do not find any substance for the submission made on behalf of the appellants that the name of the Mutawali was not mentioned in the notification. By virtue of the impugned notification, Mutawallis of Jama Masjid and Police Masjid, Aberdeen Bazar was appointed as member of the Board without mentioning the name. We find substance in the submission made by the learned Government Pleader that the Mutawallis of Jama Masjid and Police Masjid, Aberdeen Bazar were appointed for a period of one year only. While the tenure of the Board was for five years. As a result, there was no scope for mentioning the name of Mutawallis of the Wakf under reference. We also find from the materials on record that Janab. K.P. Abdul Samad Faizi passed the Muallimeen HIZB Examination conducted by Samastha Kerala Islam matha Vidyabhyasa Board. While the tenure of the Board was for five years. As a result, there was no scope for mentioning the name of Mutawallis of the Wakf under reference. We also find from the materials on record that Janab. K.P. Abdul Samad Faizi passed the Muallimeen HIZB Examination conducted by Samastha Kerala Islam matha Vidyabhyasa Board. Therefore, we do not find any impropriety in the findings of the learned Single Judge with regard to the fulfillment of eligibility criteria of the above members of the Board. We find that the pay scale of the above member of the respondent Board was Rs. 15600-39100, while the pay scale of Deputy Secretaries of Union Territory of A and N Islands was Rs. 9300-34800. We do not find any substance in the submission made on behalf of the appellants that aforesaid information was not before the respondent No. 1 at the time of appointing the aforesaid person as member of the respondent Board. Once it is found that the members fulfil the eligibility criteria and the appointment were made in accordance with the provisions of section 14 of the Wakf Act, 1995, there was no scope to interfere with those appointments in course of judicial review with regard to Mohd. Tabraiz. In view of the above observations, it can not be held that the notification is liable to be set aside on the ground that relevant materials were not placed before the respondent No. 1 as alleged. 8. WE find no impropriety in the findings of learned Single Judge with regard to the fulfillment of requisite qualification by the members of the respondent Board. Regarding the fourth ground, we find that the respondent No.3 had discharged his functions in the matter before his appointment was set aside. Subsequent order of a court for setting aside his appointment cannot be valid ground of attack of functions during the valid tenure of holding the office under reference. 9. WITH regard to the last ground for challenge, we find that from the notification dated January 12, 1989 that the name of Jama Masjid, Delanipur was included in the above list which was published under the provisions of sub-section 2 of section 5 of the Wakf Act, 1954 read with Rule 4 of A and N Islands Wakf Rules, 1976. WITH regard to the last ground for challenge, we find that from the notification dated January 12, 1989 that the name of Jama Masjid, Delanipur was included in the above list which was published under the provisions of sub-section 2 of section 5 of the Wakf Act, 1954 read with Rule 4 of A and N Islands Wakf Rules, 1976. Therefore, it doesn't lie on the mouth of the appellants that the Masjid under reference was not a Wakf or that the Committee under reference was not appointed by Board. Therefore, there was no bar and/or impediment on the part of the respondent Board to initiate action against the appellants under the provisions of section 67 read with section 2 of the Wakf Act, 1995. It is necessary to point out here that though the above list was published on January 12, 1989, the appellants did not file any application for registration of the Wakf under reference before the Wakf Board in accordance with law. But they are raising objection with regard to the steps taken against them under the provisions of law by the Wakf Board. 10. ON the basis of discussions and observations made hereinabove, we do not find any impropriety in the impugned judgment and the appeal is dismissed. There will be no order as to costs. Appeal dismissed.