Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 62 (AP)

Shaik Khaja v. State of Andhra Pradesh

2020-01-24

T.RAJANI

body2020
ORDER : 1 Seeking to declare G.O.Ms. No. 38, Minorities Welfare (IDM) Department, dated 15.07.2019, and the appointment of the 3rd respondent as Competent Authority/Special Officer vide G.O.Ms. No. 39, Minorities Welfare (IDM) Department, dated 15.07.2019, as illegal and to declare that the Board constituted vide G.O.Ms. No. 10, Minorities Welfare (IDM), dated 13.03.2018, is entitled to continue to function till expiry of five years in accordance with the provisions of Waqf Act, these writ petitions are filed. 2. Since the issue involved in these writ petitions being one and the same, these are being disposed of by this common order. 3. The facts in W.P. No. 9465 of 2019, so far as are relevant for deciding the issues involved in these writ petitions, may be stated as follows: The 1st respondent established the Andhra Pradesh State Wakf Board (for short “Board”) with effect from 08.09.2015, vide G.O.Ms. No. 119, Muslim Welfare (SDM) Department, dated 30.10.2015. The 1st respondent, having decided to constitute the Andhra Pradesh State Waqf Board, while notifying the elections to the elected category of members of the Board in terms of Section 14(1)(b)(ii) & (iv) of the Waqf Act, 1995 (for short “the Act”) had issued a notification of election schedule vide G.O.Ms. No. 31, Minorities (IDM) Welfare Department, dated 10.08.2017. As per the election notification, the elections were conducted on 31.08.2017 and the 1st petitioner was declared as elected. The respondent, vide G.O.Ms. No. 10, reconstituted the Board with 9 members, svide notification issued in exercise of the powers conferred under Section 14(9) and reconstituted under Section 15 of the Wakf Act. Vide Clause 10 of the GO, the 1st respondent has directed that the members appointed to the 2nd respondent shall meet and elect one from amongst themselves as Chair Person of the Board under Section 14(8) of the Act. The 2nd respondent has issued a notification, dated 26.03.2018, notifying the appointment of one Jaleel Khan, MLA as Chair person. The 2nd respondent has got power of general superintendence on all Auqafs in the State and it shall be the duty of the Board to exercise its powers under the Act, to ensure that the Auqaf under its superintendence are properly maintained, for which the CEO shall be the ex officio Secretary. The 2nd respondent has got power of general superintendence on all Auqafs in the State and it shall be the duty of the Board to exercise its powers under the Act, to ensure that the Auqaf under its superintendence are properly maintained, for which the CEO shall be the ex officio Secretary. The first meeting of the Board was convened on 26.03.2018 and subsequently several meetings were conducted on various dates from time to time and the last meeting was conducted on 02.02.2019. As per Rule 7, the next Board meeting, though has to be conducted in the month of April, 2019, on a lame excuse of “Modal Code of Conduct” no steps were initiated to conduct board meeting by the Chief Executive Officer. The Chairperson of the 2nd respondent has addressed a letter, dated 10.05.2019, requesting the CEO to immediately convene a board meeting on 21.05.2019 at 11:00 AM, in his chambers pointing out that the last Board meeting was held on 02.02.2019. The CEO, instead of conducting a meeting, as per the directions given by the Chairperson, addressed a letter to the 1st respondent vide proceedings F. No. 2/AP/Board-Meeting/2018, dated 13.05.2018, to accord permission to conduct meeting on 21.05.2019 at 11:00 AM, though the permission of the 1st respondent is not required. Section 17 deals with meetings of the Board. In exercise of the powers conferred by Section 109(1) of the Act, the 1st respondent has framed the Rules called A.P. Wakf Rules, 2000. Rule 7 deals with time and place of meeting of the Board, whereas Rule 8 deals with the quorum and procedure in conduct of the business. Since the 2nd respondent is not conducting meeting and thereby preventing the board from functioning, all the board members have requested the CEO to convene the Board meeting on 29.06.2019. In violation of all provisions available on the subject, the CEO vide F.No. 02/AP/Board-Meeting/2018, dated 20.06.2019, informed the 1st respondent about the joint representation made by the Board members. The 1st respondent vide Memo No. 346415/IDM/A1/2016, dated 24.06.2019, directed the CEO not to convene the Board meeting until further orders and the same was informed to the members by the CEO vide proceedings dated 24.06.2019. The 1st respondent vide Memo No. 346415/IDM/A1/2016, dated 24.06.2019, directed the CEO not to convene the Board meeting until further orders and the same was informed to the members by the CEO vide proceedings dated 24.06.2019. In view of the arbitrary attitude of the respondents 1 and 2 ,one of the board members filed W.P. No. 8173 of 2019 seeking to declare the Memo No. 346415/IDM/A1/2016, dated 24.06.2019, as illegal and to direct the 2nd respondent to conduct meeting of the Board members. This court by virtue of the order dated 01.07.2019 issued notice before admission and directed to post the writ petition for counter. The 1st respondent vide Memo No. 346415/IDM/A1/2016, dated 03.07.2019, issued a show cause notice allegedly in exercise of Section 99 of the Act, directing to show cause as to why the Board should not be superceded within 7 days from the date of receipt of a show cause notice and if no reply is received, it would be construed that there is no reply and orders would be passed with the material available on record. The 2nd respondent served the said show cause notice. The petitioner submitted a representation dated 05.07.2019 requesting the 2nd respondent to provide the relevant material/files to enable him to submit a detailed explanation to the 1st respondent. He also requested the 1st respondent, through e-mail dated 05.07.2019, to provide information as required, to submit explanation. Respondents 1 and 2 received respective representations, but failed to give any reply and failed to furnish copies and the documents sought for. Having failed to receive any communication from the 2nd respondent, the petitioner submitted a representation, dated 15.07.2019, to the Public Information Officer, (RTI), Minorities Welfare (IDM) Department, AP Secretariat, Amaravathi, to provide a copy of the report/letter of CEO vide F.No. 02/AP/Board- Meeting/2018, dated 20.06.2019, which is submitted to the 1st respondent on the subject and which was referred in the show cause notice, dated 03.07.2019. Till date, no communication was received from the respondents 1 and 2 or from the Public Information Officer under the RTI Act. The petitioner submitted a representation, dated 15.07.2019, requesting the 1st respondent to grant two weeks time beyond fixed seven days. Till date, no communication was received from the respondents 1 and 2 or from the Public Information Officer under the RTI Act. The petitioner submitted a representation, dated 15.07.2019, requesting the 1st respondent to grant two weeks time beyond fixed seven days. Though the 1st respondent has referred the proceedings in F. No. 02/AP/Board-Meeting/2018, of the CEO dated 20.06.2019, and having relied on the same in the show cause notice, dated 03.07.2019 and at item No. 2 of G.O.Ms. No. 38, copy of the same has not been admittedly supplied to the petitioner till date for various reasons. After receiving the show cause notice one of the board members filed WP No. 8849 of 2019 seeking to declare the Memo No. 346415/IDM/A1/2016, dated 03.07.2019, issued by the st respondent as illegal. Having heard both sides, the court reserved the judgment on 12.07.2019. The 1st respondent though has brought GO Ms.No. 38 and 39 dated 15.07.2019, copies of the same have not been supplied. While things stood thus, the 1st respondent, in utter violation of all laws on the subject and in haste issued G.O.Ms. No. 38 and superseded the Board for a period of six months or till the Board is reconstituted, whichever is earlier under Section 99 of the Act. The 1st respondent also brought into existence G.O.Ms. No. 39, appointing the 3rd respondent as competent authority/special officer to the Board till the Board is reconstituted under Section 14 of the Act. Hence, these writ petitions, seeking the above mentioned reliefs. 4. The 2nd respondent-Special Officer of the A.P. State Wakf Board filed counter, denying the averments of the petition and with the following contentions: The petitioners are seeking a writ of Certiorari, which is maintainable only when any judicial or quasi judicial order is under challenge. When the discretion is vested with an executive authority, who is vested with quasi judicial functions, and that discretion is improperly exercised then only a Writ of Certiorari can be maintained. Section 14 of the Act provides for composition of the Board. It comprises of the elected as well as nominated members. The nominees shall be by the State Government. The 1st respondent through G.O.Ms. No. 10, Minorities Welfare (IDM) Department, dated 13.03.2018, constituted A.P. State Wakf Board. Out of nine nominated members, all members submitted resignations and one K.M. Saifullah, also submitted his resignation to the Chairman. It comprises of the elected as well as nominated members. The nominees shall be by the State Government. The 1st respondent through G.O.Ms. No. 10, Minorities Welfare (IDM) Department, dated 13.03.2018, constituted A.P. State Wakf Board. Out of nine nominated members, all members submitted resignations and one K.M. Saifullah, also submitted his resignation to the Chairman. Therefore, as on the date of issuance of Memo No. 346415/IDM/A1/2016m, dated 03.07.2019, petitioners, numbering three, were continuing as nominated members. Sri K.M.Saifullah did not attend any board meeting since the day of its constitution. The petitioners were attending the board meetings. With the publication of declaration of General Elections for the State Assembly-2019, Jaleel Khan also submitted his resignation. Under those circumstances, the 1st respondent felt that in view of sub-section (4) of Section 14, which contemplates that the number of elected members of the Board shall always be more than the nominated members of the Board and that only two elected members are continuing and the Board is not able to perform its duty, issued a show cause notice, dated 03.07.2019, as per the procedure provided under Section 99 of the Act as to why the Board should not be superseded. The 1st respondent also pointed out certain financial and administrative irregularities in the functioning of the Board. Therefore, no reply was issued to the show cause notice. Hence, the 1st respondent thought it fit to pass an order of super session. Since there cannot be any vacuum in the administration of board, the 2nd respondent through G.O.Ms. No. 39, appointed the 2nd respondent as competent authority/special officer in exercise of Section 99(2) of the Act for a period of six months. In W.P. No. 8849 of 2019, no interim orders were passed, though the petitioners specifically prayed for grant of stay of all further proceedings pursuant to Memo No. 346415/IDM/A1/2016, dated 03.07.2019. Since no interim order was operating against the 1st respondent, 1st respondent thought it fit to take action, pursuant to the show cause notice and thus issued G.O.Ms. No. 38, superseding the Board. Since there was no reply to the show cause notice, the impugned order was passed with due application of mind, which is apparent from the Government order as well as the show cause notice. 5. No. 38, superseding the Board. Since there was no reply to the show cause notice, the impugned order was passed with due application of mind, which is apparent from the Government order as well as the show cause notice. 5. Heard Sri Vedula Venkata Ramana, learned senior counsel for the petitioner in W.P. No. 9369 of 2019; Sri M. Mehdi Hussain, learned counsel for the petitioner in W.P. No. 9371 of 2019 and Sri V. Satyanarayana Prasad, learned counsel for the petitioner in W.P. No. 9465 of 2019; Sri P. Sudhakar Reddy, learned Additional Advocate General appearing for the 1st respondent and Sri K.Asad Ahamed, Standing Counsel for Waqf Board, appearing for the 2nd respondent. None appears for the 3rd respondent. 6. The main grievance of the petitioners is that the impugned order got to be passed without sufficient time being given for showing cause against the action proposed to be taken by virtue of the show cause notice, dated 03.07.2019. The counsel for the petitioners submits that WP MP No. 8849 of 2019 was filed impugning the show cause notice, dated 03.07.2019. Though no interim orders were passed in the said writ petition, the matter was heard and was reserved for judgment on 12.07.2019 and in the above circumstances passing of the impugned order is nothing but a contempt of court. He takes support of the ruling of the Supreme Court in Govind Sahai vs. State of U.P. 1969 (1) SCR 176 . 7. The Additional Advocate General, on the other hand, vehemently contends that since no interim orders are passed in the said writ petition, there was no hurdle for the respondents to pass the impugned order. It is an admitted case of the parties that the writ petition was filed questioning the show cause notice and though no interim orders were passed, the matter was reserved for judgment and the impugned order is passed pending the judgment in the said writ petition. The Supreme Court by relying on the judgment in Pratap Singh vs. Gurbaksh Singh, (1962) Supp 2 SCR 838 case held that any conduct, which interferes with, or prejudices parties litigant, during the litigation, is undoubtedly contempt of court. The counsel, on the basis of the above ruling, argues that contemptuous order is always an illegal order and cannot be sustained. 8. The counsel, on the basis of the above ruling, argues that contemptuous order is always an illegal order and cannot be sustained. 8. The show cause notice sets forth as many as five grounds, which includes the ground of grave irregularities committed by the Board. The show cause notice called upon the petitioners and the Board members to show cause within seven days from the date of receipt of the said notice as to why the Board should not be superseded. Following the said show cause notice, one of the board members Sk. Khaja, addressed a letter to the 2nd respondent Chief Executive Officer, Board on 05.07.2019, requesting him to provide certain material in order to enable him to submit explanation to the Government for the show cause notice. By virtue of a letter, dated 15.07.2019, said Sk. Khaja, requested the 1st respondent to grant additional time beyond seven days for submitting the explanation. It is not disputed that the documents sought for in the letter, dated 05.07.2019 were not supplied to the said Sk. Khaja. Since one of the board members have sought for the documents and allegations are common to all the board members, the submission of the petitioner’s counsel is that, the petitioners did not make a separate application for the said documents, which would suffice to answer the show cause notice. By virtue of a letter to the Public Information Officer, right to information section, dated 25.07.2019, Sk. Kahaja sought only copy of the report of the State Wakf Board in order to reply to the show cause notice. But even the Public Information Officer did not furnish the said report. 9. The respondents being aware that the information sought for is relevant to answer the allegations mentioned in the show cause notice, failed to supply the documents and even the request to extend the time to answer the show cause notice also was not accepted by the respondents. When the very show cause notice is impugned before this court in the above said writ petition, and when the documents sought for by the board members to reply for the show cause notice are not furnished, the act of the respondents in passing the impugned order superseding the board is on the face of it a contemptuous act. 10. When the very show cause notice is impugned before this court in the above said writ petition, and when the documents sought for by the board members to reply for the show cause notice are not furnished, the act of the respondents in passing the impugned order superseding the board is on the face of it a contemptuous act. 10. The counsel for the petitioners assails the impugned order on yet another ground, which is that it does not put forth the reasons. In answer to the said contention the Additional Advocate General, by relying on the judgment of the Supreme Court reported in Mst. Shamshad Begum Dar vs. Union of India in Civil Writ No. 532 of 1982, decided on 19.10.1982, contends that when the reasons are mentioned in the show cause notice, it is not necessary that the reasons should be reiterated in the final order. On the other hand, the counsel for the petitioners, with the help of the ruling of the Supreme Court reported in Mohinder Singh Gill vs. Chief Election Commissioner, 1978 (1) SCC 405 contends that the final order should put forth all the grounds in spite of they being mentioned in the show cause notice. At paragraph 8 of the said judgment, the Constitutional bench of the Supreme Court in the above cited ruling held as under: “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 . Public Orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public Orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public Orders may be public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” 11. From what the Supreme Court said, this court understands that there cannot be any affidavit or otherwise supplementing the order made by a statutory functionary and an order bad in the beginning may by the time it comes to Court on account of a challenge gets validated by additional grounds later brought out. In this case, there is no affidavit or any additional grounds that are put forth by the respondents and it is only on the grounds that are already mentioned in the show cause notice that the final order was issued. Since the Supreme Court in Mst. Shamshad Begum Dar’s case has specifically held that in cases where no reply has been filed with the show cause notice, prima facie grounds stated in the show cause notice have to be assumed to be true and since there is no contest to the position taken by the Central Government, no further reasons can be stated in the order. It also held that in such a case also the order of supercession speaks but it speaks only for reiterating the reasons. It is not required to speak more in its justification. 12. This court does not see any conflict between the two judgments, as the judgment in Mohinder Singh Gill’s case deals with a situation where an affidavit or otherwise is filed, supplying the reasons mentioned in the final order whereas in Mst. Shamshad Begum Dar’s case the court dealt with the final order, which does not spell the reasons, which are already mentioned in the show cause notice. This does not amount to supplying reasons to the order, but it would only amount to relying on the reasons already mentioned earlier. Hence, there is no need to state the reasons which are mentioned in the show cause notice, in the final order also. This does not amount to supplying reasons to the order, but it would only amount to relying on the reasons already mentioned earlier. Hence, there is no need to state the reasons which are mentioned in the show cause notice, in the final order also. Hence, it can be held in this case that the reasons mentioned in the show cause notice would suffice to pass the final order. 13. But the main contentious issue is whether the respondents are justified in passing a final order while the judgment in the writ petition is pending and without furnishing the documents, which are sought for by the board members. The proviso to Section 99(1) of the Act, specifies that reasonable time has to be given to the board to show cause why it should not be superseded. In this case, the reasonable time would be till the documents are furnished by the respondents to the Board members to enable them to explain the allegations made in the show cause notice. Without giving such reasonable time to the board members, passing of the impugned order is unreasonable and hence, the same is liable to be set aside. The other grounds raised in the counter were not argued, hence not dealt with. 14. With the above observations, the Writ Petitions are allowed setting aside the G.O.Ms. No. 38, Minorities Welfare (IDM) Department, dated 15.07.2019, and the consequential G.O.Ms. No. 39, dated 15.07.2019. As a sequel, the miscellaneous applications pending, if any, shall stand closed.