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2016 DIGILAW 1203 (ALL)

Kadeer Khan Jaiswal v. State of U. P.

2016-04-04

V.K.SHUKLA, VIVEK KUMAR BIRLA

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JUDGMENT Kadeer Khan Jaiswal describing himself as Secretary, Management of Dargah Sayeed Bhure Shah, No. 321, Bulandshahar, Gautam Budh Nagar is before this Court assailing the validity of the order dated 11.2.2016 passed by the respondent no. 2-U.P. Sunni Central Waqf Board, Lucknow through its president wherein the petitioner's managing committee has been superseded and in its place managing committee (respondent no. 3) has been sought to be installed. 2. On the presentation of the writ petition in question, a preliminary objection has been raised by Sri Punit Kumar Gupta as well as Sri Atul Srivastava, Advocate that against the said order in question, there is statutory remedy of Appeal provided for under Section 67 (4) of U.P. Waqf Act, 1995 and in view of this, the petitioner should be relegated to the remedy of appeal by approaching the tribunal concerned. 3. Confronted with this situation, Sri Kumar Anish, learned counsel appearing for the petitioner submitted that the case in hand falls within the exception that has been provided for in the case of Whirlpool Corporation v. Registrar, 1998 (8) SCC 1 . as here the order in question passed is in complete violation of principles of natural justice and as such, the petitioner should not be relegated to the remedy of appeal. 4. In order to see and ensure as to whether the petitioner should be relegated to the remedy of Appeal or this is a glaring case of violation of principles of natural justice, we have proceeded to examine record in question and what we find is that the proceedings for supersession under Section 67 of the U.P. Waqf Act, 1995 had been initiated way back in the year 2013 and the said proceeding in question on one pretext or the other was being dragged on and this much is also reflected from the record that eventually the last hearing took place on 25.8.2015 and on the said date it appears that at the point of time when hearing in question was concluded, it was agreed upon inter-se parties that a fresh report in question be called for. This much is accepted that fresh report has been submitted on 3.2.2016 and after receiving the same accepted position is that the waqf board has proceeded to consider the reply of the petitioner as well as the report dated 3.2.2016 and based on the same impugned order in question has been passed. 5. Thus accepted position that is so emerging from the record is that hearing in question took place on 25th August, 2015. Report in question had been called for and the said report was submitted on 3.2.2016. Accepted position further is that at no point of time copy of the said report had ever been supplied to the petitioner and the waqf board in question on its own by considering the reply of the petitioner and the said report has proceeded to form opinion. We do not approve as the procedure that has been adopted by the waqf board for the simple reason that once enquiry report dated 3.2.2016 has been submitted and has been relied upon by the Board for taking adverse decision against the petitioner and same was being used as material then in this backdrop it was incumbent and obligatory on waqf board to have proceeded to supply copy of the same and then fresh hearing ought to have been undertaken in the matter. Thus, on its face value, it is writ apparent that the order passed is in utter contravention and violation of principles of natural justice. 6. Petitioner's counsel has also complained before us that in the present case a detailed reply has been submitted and the said reply has been sought to be ignored by contending that it has no force. Petitioner's counsel further complains that said reply also ought to have been considered as the said reply in question clearly provides material to non-suit the material that has been shown adverse to the petitioner. 7. Consequently, in the facts and circumstances of the case, we do not at all approve decision making process adopted by the waqf board while passing the impugned order dated 11.2.2016. In view of this, the impugned order dated 11.2.2016 is hereby quashed and set aside. The matter is remanded back to the respondent no. 2- U.P. Sunni Central Waqf Board, Lucknow for deciding afresh preferably within next two months from the date of production of certified copy of this order. 8. In view of this, the impugned order dated 11.2.2016 is hereby quashed and set aside. The matter is remanded back to the respondent no. 2- U.P. Sunni Central Waqf Board, Lucknow for deciding afresh preferably within next two months from the date of production of certified copy of this order. 8. Both the petitioner's counsel as well as the contesting respondents' counsel have accepted before us that as of now both of them are in possession of the report dated 3.2.2016. The respondent no. 2 should fix a date and decide the matter within time frame provided for, objectively on the basis of material/reply submitted by parties. 9. The writ petition stands allowed with the aforesaid observations/directions. No order as to costs.