Mostak Ahamed @ Mustak Ahmed@ Mustaque Ahmed v. Board of Wakf, West Bengal
2016-12-22
HARISH TANDON
body2016
DigiLaw.ai
JUDGMENT : HARISH TANDON, J. 1. The resolution dated 19.06.2014 confirmed by the Board of Wakf appointing the Opposite Party No. 2 as Mutawalli of Mohammad Sekender Ali Wakf State was challenged in a proceeding initiated under Section 83(2) of the Wakf Act by the Petitioners except Petitioner No. 1. The said proceeding was disposed of on 24th March, 2015 setting aside the said resolution and confirmation by the Board of Wakf remitting the matter to the Board to dispose of the application for appointment of the Mutawalli after affording an opportunity of hearing to the beneficiaries of the Wakf State. The said order was challenged in C.O 2028 of 2015 by the Opposite Party No. 2. The attention of this Court was drawn to Section 83(4) of the said Act, which provides that the Tribunal shall consist of three persons. Since, the said order was passed by two persons, it was set aside and the matter was remitted back for reconsideration. After the matter was sent on remand, the Petitioner No. 1 was added as Applicant No. 13 in the said proceeding. In the impugned order though the Tribunal recorded that an opportunity of hearing should be given to the added Applicant No. 13 but in view of the serious nature of charges against him, it would be useless to send the matter back to the Board of Wakf for fresh consideration in the garb of natural justice. 2. A clear impression which one can gather from the impugned order is that if serious charges are leveled against a person, he should be denied of an opportunity of hearing. This Court finds that such understanding of law by the Members of Tribunal not only offends the fundamental rights of the citizens of the country but also opposed to the settled proposition of law. The framers of the Constitution emphasized the principle of natural justice to be extended to every citizen before he is condemned for his act. It should be applied more rigidly when a stigma is put on the action of such person. It is one of the fundamental entitlement of a person to get an opportunity of hearing before he suffers the consequences for the act done by him. Article 14 of the Constitution acknowledges non-arbitrariness as an ingredient thereof pervading the entire realm of action of an authority governed by such article.
It is one of the fundamental entitlement of a person to get an opportunity of hearing before he suffers the consequences for the act done by him. Article 14 of the Constitution acknowledges non-arbitrariness as an ingredient thereof pervading the entire realm of action of an authority governed by such article. The legal maxim audi alterem partem is a facet of natural justice and the requirement under Article 14 and therefore the natural justice is antithesis of arbitrariness. 3. It would be trite to say that adherence of the principle of natural justice recognized by all civilized state is of supreme importance more so when a quasi judicial body (Tribunal) embarks in determining the cause involving civil consequences. The Tribunal entrusted with the task of deciding the lis between the parties or adjudicating upon the rights of the individuals are duty bound to comply with the rules of natural justice, which are multifaceted. Rules of natural justice are not codified nor are they unvarying in all situations. It simply connotes in one word “fairness”. 4. Over the years by a process of judicial interpretation various Rules have been evolved as representing the principle of natural justice in judicial process. They constitute the basic elements of a fair hearing having their rights in the innate sense of a man for fair play and justice, which is not perverse of any particular race or country but is shared in common by all men. The term “natural justice” was often used interchangeably with natural law or just natural meaning thereby certain rules of conduct is supposed to be so just that they are binding on all mankind. The principle of natural justice has always been considered as part of Article 14 and includes rights to fair treatment. 5. The Wakf Tribunal is constituted under the Wakf Act and entrusted with the power akin to a Civil Court in adjudicating the rights of the parties. It is inconceivable and improbable that though the Tribunal felt that an opportunity of hearing to be given to the Petitioner No. 1 yet it proceeded to accept all charges leveled against him despite the fact that a proceeding is pending before the Board of Wakf and such allegations have not been proved conclusively.
It is inconceivable and improbable that though the Tribunal felt that an opportunity of hearing to be given to the Petitioner No. 1 yet it proceeded to accept all charges leveled against him despite the fact that a proceeding is pending before the Board of Wakf and such allegations have not been proved conclusively. The Tribunal proceeded as if those charges have been proved and it would be an idle exercise to embark upon a journey of adjudicating the same, in other words, it would be a mere formality if an opportunity of hearing is given to the Petitioner No. 1 in view of the seriousness of charges made against him. It is a glaring example of denial of opportunity of hearing offending the principle of natural justice. There should be some mechanism to be followed for appointment of the Members of the Tribunal who are entrusted with the onerous task of deciding the rights of the parties concerning the Wakf. 6. The experience gained over the years in dealing with the revisional application against the orders passed by the Wakf Tribunal, the manner in which the proceedings are decided and the way the Members pass the orders, the purpose and object underlying the constitution of the Tribunal is totally frustrated. The approach is feudalistic than what is minimal expectation from the Members constituting the Wakf. It is the appointing authority, who has to ponder and rethink before appointing the Members. Let this order be placed before the learned Advocate General to rethink on the subject and to give better advice to all concern. 7. In view of the discussions made herein above, the order cannot be sustained and is accordingly set aside. 8. The Tribunal is directed to reconsider the case afresh after affording an opportunity of hearing to the Applicant No. 13 and shall dispose of the same within 2 (Two) months from the date of the communication of this order by recording proper reasons. 9. The revisional application is, thus, disposed of. 10. However, there shall be no order as to costs.