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2018 DIGILAW 19 (MAN)

MD. FAJUR RAHIM v. STATE OF MANIPUR

2018-05-18

KH.NOBIN SINGH

body2018
JUDGMENT : NOBIN SINGH, J. 1. Heard Shri. B.P. Sahu, learned Senior Advocate appearing for the petitioner; Smt. Momota Oinam, learned Addl. Advocate General appearing for the respondent No. 1 and Shri. Y. Nirmolchand, learned Senior counsel appearing for the respondent No. 2. 2. By the instant writ petition, the petitioner has prayed for issuing a writ of Certiorari or any other appropriate writ, direction or order to quash FR/NFR and set aside the impugned order dated 01-03-2018 issued by the Deputy Secretary (MOBC), Government of Manipur. 3.1. The facts of the case as narrated in the writ petition, are that the Waqf Board, Manipur was constituted by the Government of Manipur under the provisions of the Waqf Act, 1995. In exercise of the power conferred under Section 14(9) of the Waqf Act, 1995 read with Rule 35 of the Manipur Waqf Board (Conduct of Election) Rules, 1997, the members of the 6th Waqf Board, Manipur were appointed vide Notification dated 05-06-2015 issued by the Secretary (MOBC), Government of Manipur, for which the petitioner was the Chairman and since then, the Board had been imparting its duties and responsibilities to the full satisfaction of all concerned till the issuance of the impugned order. 3.2. To the utter surprise of the petitioner, the Deputy Secretary (MOBC & SC), Government of Manipur issued a show cause notice dated 31-01-2018 to the Chief Executive Officer, Waqf Board, in a purported exercise of the power conferred under Section 99 of the Waqf Act, 1995, to show cause as to why the Waqf Board should not be dissolved and superseded. Although many allegations were made in the said notice, no documents in support thereof were furnished to the petitioner and the members of the Waqf Board and in response thereto, the Chief Executive Officer, Waqf Board submitted a written explanation to the Deputy Secretary (MOBC), Government of Manipur vide its letter dated 06-02-2018 explaining the details as regards the charges made in the notice. Without considering the said explanations given by the Waqf Board and completely overlooking and neglecting the amendment of Section 99 of the Waqf Act, 1995, the Deputy Secretary (MOBC), Government of Manipur issued an order dated 01-03-2018, impugned herein, dissolving and superseding the Waqf Board. 3.3. Without considering the said explanations given by the Waqf Board and completely overlooking and neglecting the amendment of Section 99 of the Waqf Act, 1995, the Deputy Secretary (MOBC), Government of Manipur issued an order dated 01-03-2018, impugned herein, dissolving and superseding the Waqf Board. 3.3. Being aggrieved by the said order dated 01-03-2018, the instant writ petition has been filed by the petitioner on the inter-alia grounds that the provisions of Section 99 of the Waqf Act, 1995 have been grossly misused and have been illegally applied in the present case; that the amendment of the said provisions of Section 99 has been totally overlooked and neglected while issuing the said order for dissolving the Waqf Board, Manipur; that as per the provisions of Section 99 of the Act, the Waqf Board can only be superseded and not dissolved by the State Government; that the supersession of the Waqf Board can also be done when it is found that the Waqf Board has persistently made default for the purpose of its statutory duties or it has exceeded or abused its power and that the respondents have failed to furnish any document in respect of the allegations made in the notice. Moreover, the show cause has been issued to the Chief Executive Officer and not to the petitioner or any other member of the Waqf Board which is a must. Therefore, the acts of the respondents in dissolving the Waqf Board are illegal, unlawful, arbitrary, malafide, biased, discriminatory, vindictive and capricious to the extent that they have deprived the petitioner of his fundamental rights guaranteed under the Constitution of India. 4. An affidavit-in-opposition has been filed on behalf of the respondent No. 2 wherein it has been stated that the Waqf Board has been superseded for six months, and not dissolved, by the State Government as per the provisions of Section 99 of the Waqf Act, 1995 and the error occurred in the impugned order dated 01-03-2018 has been rectified by issuing a Corrigendum dated 27-03-2018. The allegations have been made by the respondents in the said notice on the ground that there are sufficient prima facie evidence of financial irregularities, misconduct or violation of the provisions of the Waqf Board Act, 1995 and moreover, the written explanation submitted by the Chief Executive Officer, Waqf Board was found unsatisfactory and unreliable. The allegations have been made by the respondents in the said notice on the ground that there are sufficient prima facie evidence of financial irregularities, misconduct or violation of the provisions of the Waqf Board Act, 1995 and moreover, the written explanation submitted by the Chief Executive Officer, Waqf Board was found unsatisfactory and unreliable. The State Government after examining the available evidence of financial irregularities, misconduct and violation of provisions of the Waqf Act, 1995 as regards the functioning of the Waqf Board, issued the order of supersession. Further, it has been found by the State Government that the Waqf Board's continuation is likely to cause injury to the interest of the auqaf in the State. There are documentary evidences of misappropriation of fund and withdrawal of fund by the then Chief Executive Officer and the Chairman of the Waqf Board. The State Government released a sum of Rs. 93.41 lakhs in December 2017 from MH-8449-other deposits for the purpose given in the letter issued by the Finance Department wherein there was no provision for salary of Madrassa Department and Madrassa Modernisation (MM) Teachers. The Chairman withdrew a sum of Rs. 11,40,000/- (Rupees eleven lakhs forty thousand) vide Cheque No. 166809 dated 16-01-2018 for payment of salary to MM Teachers for March, 2014. There are many instances where money was withdrawn through self cheques and payments made in cash. The State Government conveyed the approval for creation of 150 post of teachers in the nomenclature of Primary/Under Graduate Teachers and 29 different posts to regularise 150 existing contract teachers and 21 existing contract employees against the posts created in the Waqf Board, Manipur subject to verification of their educational qualifications vide letter dated 30-12-2016 in pursuance of the Cabinet decision taken on 24-11-2016 but since the election Code of Conduct had come into force, there was no enough time for verification of educational qualifications and other mandatory procedures/formalities. After the formation of the new government, the State Government issued an instruction not to issue orders for regularisation of teachers in the Waqf Board until further notice vide its letter dated 08-05-2017. After the formation of the new government, the State Government issued an instruction not to issue orders for regularisation of teachers in the Waqf Board until further notice vide its letter dated 08-05-2017. The Chief Executive Officer, Waqf Board, in his letter dated 23-05-2017, stated that the Waqf Board had stopped issuing any order for regularisation with the government instruction dated 08-05-2017 and moreover, he further stated in his letter dated 24-08-2017 that the regularisation orders in respect of Madrassa Modernisation Teachers were not issued due to incomplete process for verification of their educational qualifications. In this regard, there are prima facie evidence of irregularities committed in the functioning of the Waqf Board and gross abuse of the power back-dating and issuance of appointment orders without obtaining approval of the State Government and therefore, there is no any ground for interfering with the impugned order as the same does not suffer from any irregularity. 5. The subject matter in issue relates to the interpretation of the provisions of Section 99 of the Waqf Act, 1995 which is reproduced herein below: "99. Power to supersede Board.-(1) If the State Government is of opinion that the Board is unable to perform or has persistently made default in the performance of, the duty imposed on it by or under this Act or has exceeded or abused its powers, or has wilfully and without sufficient cause failed to comply with any direction issued by the Central Government under section 96 or the State Government under section 97, or if the State Government is satisfied on consideration of any report submitted after annual inspection, that the Board's continuance is likely to be injurious to the interests of the auqaf in the State, the State Government may, by notification in the Official Gazette, supersede the Board for a period not exceeding six months: Provided that before issuing a notification under this sub-section, the State Government shall give a reasonable time to the Board to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Board: Provided further that the power of the State Government under this section shall not be exercised unless there is a prima facie evidence of financial irregularity, misconduct or violation of the provisions of this Act. (2) Upon the publication of a notification under sub-section (1) superseding the Board,- (a) all the members of the Board shall, as from the date of supersession, vacate their offices as such members; (b) all the powers and duties which may, by or under the provisions of this Act, be exercised or performed by or on behalf of the Board shall, during the period of supersession, be exercised and performed by such person or persons as the State Government may direct; and (c) all properties vested in the Board shall, during the period of supersession vest in the State Government. (3) On the expiration of the period of supersession specified in the notification issued under sub-section (1), the State Government may- (a) extend the period of supersession by another six months with reasons to be recorded in writing and, the period of continuous supersession shall not exceed more than a year; or (b) reconstitute the Board in the manner provided in section 14." 6. Section 99 of the Waqf Act, 1995 provides for supersession of the Waqf Board by the State Government on certain grounds as detailed in sub-section (1). In other words, the State Government is empowered to supersede the Waqf Board on any of the grounds mentioned therein. The provisions of Section 99(1) can be divided into parts - one, it relates to the formation of an opinion as regards the performance and functioning of the Waqf Board and two, it relates to the satisfaction of the State Government on the consideration of any report submitted after annual inspection. It is thus seen that the supersession of the Waqf Board by the State Government is to be based either on the opinion or on the satisfaction of the annual inspection report. The first part deals with a case where the State Government is of the opinion that the Board is unable to perform or has persistently made default in the performance of its duty or has exceeded or abused its power or has wilfully and without sufficient cause failed to comply with any direction issued by the Central Government or the State Government. The second part deals with a case where the State Government, after consideration of any report submitted after annual inspection, is satisfied that the Board's continuance is likely to be injurious to the interest of the auqaf in the State. The second part deals with a case where the State Government, after consideration of any report submitted after annual inspection, is satisfied that the Board's continuance is likely to be injurious to the interest of the auqaf in the State. The first proviso to sub-section (1) mandates that the State Government shall give a reasonable time to the Waqf Board to show cause why it should not be superseded and shall consider its explanation and objections, if any. The second proviso which has been inserted by way of an amendment sometime in the year, 2013, states that the power of the State Government shall not be exercised unless there is a prima facie evidence of financial irregularity, misconduct or violation of the provisions of Act. The conjoint reading of sub-section (1) and the second proviso thereto makes it very clear that the grounds as detailed in sub-section (1) have been qualified by the expression "prima facie evidence of financial irregularity, misconduct or violation of the provisions of the Act". In other words, before any action is taken towards supersession of the Waqf Board, there has to be a prima facie evidence of financial irregularity, misconduct or violation of provisions of the Act with the State Government. Since there is no material on record to show that a report, after annual inspection, has been submitted to the State Government for consideration, the instant case appears to have fallen in the first category. 7. The learned counsels appearing for the parties have not brought to the notice of this court any decision of the Hon'ble Supreme Court as regards the interpretation of the provisions of Section 99 of the Waqf Act, 1995 and in particular, sub-section (1) of the Act. It may be noted that the Waqf Act, 1954 and the Waqf (Amendment) Act, 1984 have been repealed by the Waqf Act, 1995. In the Waqf Act, 1954, the power of the State Government to supersede the Waqf Board was conferred under Section 64. But Shri. B.P. Sahu, the learned Senior Counsel appearing for the petitioner has brought to the notice of this court a decision rendered by the Patna High Court in the State Bihar Sunni Waqf Board & anr. In the Waqf Act, 1954, the power of the State Government to supersede the Waqf Board was conferred under Section 64. But Shri. B.P. Sahu, the learned Senior Counsel appearing for the petitioner has brought to the notice of this court a decision rendered by the Patna High Court in the State Bihar Sunni Waqf Board & anr. v. The State of Bihar, AIR 1993 Patna 89 wherein the legality and validity of a notice of supersession of the Waqf Board purported to have been issued under Section 64 of the Waqf Act, 1954 came to be challenged. The Hon'ble High Court was pleased to hold that the order of supersession and the show cause notice were based on extraneous consideration and were passed arbitrarily with oblique motive and the relevant para thereof is as under: "18. On correct interpretation of Section 64 it has to be held that the opinion has to be based on consideration of the explanations submitted in regard to the charges levelled against it and that must be considered by a reasoned order. The fact of the present case presents a peculiar feature. Each and every allegation levelled against it were categorically repelled and refuted. They were of trivial nature on which no reasonable opinion could have been formed that the Board persistently defaulted in the performance of its duties imposed under the Act. On the other hand, the facts enumerated above would disclose that there was persistent effort on behalf of the respondents and its authorities to interfere with the day to day administration of the Board and it has been brought on record that in a period of 15 years the Boards were superseded 12 limes. It has also been demonstrated that the same charges, more or less, were levelled for claiming supersession. The Board had no adequate and proper opportunity to put its own house in order. No sooner the present Chairman had taken over the assignment, the notice to show cause was issued within four months on the allegations which have been shown to be palpably baseless. Even now the charges have not been established by any cogent evidence. No document in support of the allegation has been brought on record on behalf of the respondents. It has also been satisfactorily demonstrated that no sooner Mr. Even now the charges have not been established by any cogent evidence. No document in support of the allegation has been brought on record on behalf of the respondents. It has also been satisfactorily demonstrated that no sooner Mr. Ozair Ahmad was appointed as the Secretary to the Board just within a week thereafter a notice for supersession of the Board was issued. Mr. Ozair Ahmad was suspended by the Board on the ground of misconduct and moral turpitude. Information to this effect was in full knowledge of the respondents. Even then, ignoring the suggestion of the Board he was appointed on a false pretext that he was one of the four persons recommended by the Board itself. This has been refuted by the Board in its reply. The four persons in the list were named according to seniority and a clear indication had been given therein regarding the allegations made against Shri. Ozair Ahmad and, therefore, a suggestion had been given that some other person be appointed. It has, therefore, been alleged that the show cause notice to supersede the Board was influenced by political considerations and was based on extraneous considerations. It may be pointed out that such statutory authorities must have a free hand in performing its day to day public duty and undue frequent interference on some false pretext or the other will not be conducive to the interest of the people or the Waqf. I find that the show cause in question contained in Annexures 18 and 19 are based on no reason. Neither any reason has been so assigned nor any evidence or material has been disclosed justifying such action. Supersession of statutory body is a serious matter. It is governed by the statute and the provisions contained therein must be strictly followed. Section 64 of the Waqf Act does not give a blanket power to supersede the Board as and when the respondents and its authorities desired to do so and for any reason whatsoever. In the case of M/s. Star Enterprises v. City and Industrial Development Corporation of Maharashtra Ltd., (1990) 3 SCC 280 , it was held:-- "In recent times, judicial review of administrative action has become expensive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process." This court is not bound by the said decision of the High Court except the persuasive value thereof but it appears from the book "Commentary on the Law of Waqf in India" authored by Dr. Ahmedullah Khan that the matter was carried upto the Hon'ble Supreme Court which examined and interpreted the scope of the provisions to supersede Waqf Board and observed: "On plain reading of the said provision, it would be obvious that the opinion of the State Government to supersede the Board is not subjective opinion. It has to be based on objective findings and for the reasons to be recorded in writing. The persistent default in the performance of the duty imposed on it cannot be gathered by a solitary instance of irregularity or illegality". 8. The aforesaid decision has been rendered in the context of Section 64 of the un-repealed Act but since Section 64 thereof has been replaced by Section 99 under the new Act, the fact remains that the observations of the Hon'ble Supreme Court would apply to the facts of the present case as well. As has been stated hereinabove, before supersession of the Waqf Board, the State Government and not the officer dealing with the matter, has to form an opinion which is to be based on objective findings and for the reasons to be recorded in writing. In other words, there has to be sufficient prima facie evidence of financial irregularities, misconduct or violation of the provisions of the Waqf Act, 1995. In other words, there has to be sufficient prima facie evidence of financial irregularities, misconduct or violation of the provisions of the Waqf Act, 1995. In the affidavit filed on behalf of the State Government, it has been categorically stated that there are sufficient prima facie evidence of financial irregularities, misconduct or violation of the provisions of the Waqf Act, 1995. On perusal of the writ petition, it is seen that the case of the petitioner is that the supersession is totally illegal and politically motivated and although serious charges are levelled against the Waqf Board, the State Government while issuing show cause notice, has failed to furnish copies of the documents/evidences on the basis of which the opinion has been formed by it. It may be noted that in the affidavit filed on behalf of the State Government, it is nowhere stated that the copies of the documents have been furnished by it. 9. The short question that arises for consideration by this Court is as to whether the supersession is illegal for the reason that the principles of natural justice have not been observed, since no copies of the documents on the basis of which the opinion is formed by the State Government, have not been furnished to the Waqf Board. In other words, the question is as to whether the principles of natural justice require supply of documents upon which reliance has been placed by the State Government. In a catena of decisions rendered by the Hon'ble Supreme Court, it has been laid down that the principles of natural justice cannot be put to straightjacket and its observance would depend upon the fact situation of each case. The extent of applicability of the principles of the natural justice depends upon the nature of the enquiry/proceeding initiated against a person and the consequences that may visit the persons concerned. It is also well settled that if prejudicial allegations are to be made against a person, he must be given the particulars of that allegations so that he can prepare his defence. The rationale behind it, is that no one should be condemned unheard, in the sense that no one should be punished without an opportunity being given to him for explaining the allegations. 10. The rationale behind it, is that no one should be condemned unheard, in the sense that no one should be punished without an opportunity being given to him for explaining the allegations. 10. Coming to the facts of the present case, it is not in dispute that the Waqf Board is a statutory body constituted under the provisions of the Waqf Act, 1995 and the members of the 6th Waqf Board were appointed vide Notification dated 05-06-2015 issued by the State Government. Section 99 of the Waqf Act, 1995 confers power upon the State Government to supersede the Waqf Board on any of the grounds mentioned in sub-section (1) and such power shall not be exercised unless there is a prima facie evidence of financial irregularity, misconduct or violation of the provisions of the Act. Therefore, before issuing any Notification under sub-section (1), the State Government shall give a reasonable time to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Waqf Board. As required under the provisions of sub-section (1), a show cause notice dated 31-01-2018 was issued by the Deputy Secretary (MOBC & SC), Government of Manipur and on perusal thereof, it is seen that the allegations include the fraudulent withdrawal of self cheques, improper maintenance of accounts, collection of money on promises of providing employment, fraudulent withdrawal of money meant for Madrasa Modernisation etc. which are made on the basis of news reports, representations submitted by some educational trusts and engagement of 150 teachers for Madrasa without prior approval of the State Government. The State Government appears to have formed its opinion on the basis of the said materials which are matters of record. The grievance of the petitioner is that not a single copy of the said documents was furnished to the Waqf Board and therefore, an explanation vide letter dated 06-02-2018 of the Chief Executive Officer, Waqf Board could only be given but the same had not been considered by the State Government while issuing the impugned order. The grievance of the petitioner is that not a single copy of the said documents was furnished to the Waqf Board and therefore, an explanation vide letter dated 06-02-2018 of the Chief Executive Officer, Waqf Board could only be given but the same had not been considered by the State Government while issuing the impugned order. The averment made in the writ petition that the copies of the documents have not been furnished by the State Government at the time of issuing the notice, has not been specifically denied in the affidavit and all that the State Government has stated in the affidavit, is that there are documentary evidences of misappropriation of fund and withdrawal of fund by referring to certain documents. The supersession of the Waqf Board, a statutory body by the State Government is a serious matter and therefore, the provisions of the Act as well as the principles of natural justice ought to be observed and followed by the State Government. The mere averment in the affidavit that there are sufficient documentary evidence, is not enough and copies thereof ought to have been furnished so that the Waqf Board could have prepared its effective defence. Without furnishing copies of the documents on the basis of which the State Government had formed its opinion, it cannot be said in the facts and circumstances of the present case that the Waqf Board was given a reasonable opportunity to defend its case. Having heard the learned counsel appearing for the parties and perused the materials on record, this Court is of the view that non-furnishing of the copies of the documents has violated the principles of natural justice and has resultantly prejudiced the right of the Waqf Board to defend its case. Accordingly, the impugned order is bad in law and consequently, the Corrigendum dated 27-03-2018 cannot stand on its own and will be rendered bad in law. 11. In view of the above and for the reasons stated hereinabove, the instant writ petition is allowed and consequently, the impugned order dated 01-03-2018 and Corrigendum dated 27-03-2018 are quashed and set aside with no order as to costs. 11. In view of the above and for the reasons stated hereinabove, the instant writ petition is allowed and consequently, the impugned order dated 01-03-2018 and Corrigendum dated 27-03-2018 are quashed and set aside with no order as to costs. However, since the impugned order and corrigendum as aforesaid, having been quashed and set aside on the ground of violation of the principles of natural justice, it is open to the State Government to proceed afresh as regards the supersession of the Waqf Board in accordance with law.