Allahabad High Court

Syed Waseem Rizvi & Others vs State Of U.P. Thru. Prin. ... on 10 September, 2012

Bench: Amitava Lala, Acting Chief Justice, Anil Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Chief Justice's Court

Writ Petition No. 7456 (M/B) of 2012.

Syed Waseem Rizvi and others. ....... .... ........Petitioners.

Versus

State of U.P. and others. ....... .... .......Respondents.

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Present:

Hon. Mr. Justice Amitava Lala, Acting Chief Justice, &

Hon. Mr. Justice Anil Kumar.

Appearance:

For the Petitioners : Mr. Jaideep Narain Mathur, Sr. Advocate,

Mr. Anadi Krishna Sinha.

For the Respondents :Mr. Z.Y. Jilani,

Additional Advocate General,

Standing Counsel, &

Mr. S.A.A. Rizvi.

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Amitava Lala, ACJ.-- The petitioners are outgoing Chairman and members of the Wakf Board. They have challenged the impugned order passed on 31st August, 2012, which is as follows:

"In exercise of the powers under sub-section (1) of Section 99 of the Wakf Act, 1995 (Act No. 43 of 1995), the Governor after giving reasonable time to show cause and after considering the explanations and objections of the Uttar Pradesh Shia Central Wakf Board, hereby supersedes the said Board, from the date of publication of this notification in the Gazette, for a period of six months or up to the next order passed by the State Government in this regard, whichever is earlier."

The main contention of the petitioners to challenge the same is that Section 99 of the Wakf Act, 1995 (hereinafter in short called as the "Act") speaks that if the State Government is of the 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 continuance of the Board is likely to cause injury to the interest of the Wakf then in that case after giving reasonable time to the Board to show cause and after considering the same, appropriate order is required to be passed by the State Government. The order, which is under challenge herein, has not been passed by the State Government but by His Excellency the Governor of Uttar Pradesh.

Mr. Jaideep Narain Mathur, learned Senior Counsel appearing for the petitioners, has argued at length mainly on the issues that no show cause was served upon the Board and the impugned order is not backed by any reason. At least 15 days' time is required to be given to file reply to the said show cause, however, in the case in hand, 7 days' time has been given which is too short. Best part of the causes pertains to service of notice to the old Board but not in respect of the new Board.

From the annexures, we find that a show cause notice has been issued on 27th of July, 2012 by the concerned Secretary of the State, to which a reply has been given by the Wakf Board on 01st August, 2012. Therefore, the plea of not giving notice upon the Board becomes redundant. Though the petitioners tried to raise the plea that notice is required to be served upon the Board and not upon the Chairman that too he was then outgoing, we are of the view that once notice has been received and reply has been given and when the outgoing Chairman himself is the petitioner no. 1, the question as raised by Mr. Mathur is hypertechnical in nature. Principle of audi alteram partem has been fulfilled.

Mr. Z.Y. Jilani, learned Additional Advocate General of the State, has contended that the State respondents have already filed counter affidavit giving explanations about show cause and suspension of the Board. As regards factual issues, he submitted (a) Ground Nos. 4 and 5, which are in connection with the reply to the show cause, pertains to the period during which the Board was functioning; and (b) Ground Nos. 1, 2 and 3, though relates to the previous period, but no reaction of the Board has been given regarding conduct of the previous Board. He has further contended that the dispute in connection thereto can be adjudicated by a Tribunal under Section 83 of the Act. The Governor is empowered to issue such direction as per the Government order dated 28th June, 1975. It empowers the Governor to discharge his duty by applying Clause 2 of Article 166 of the Constitution of India.

So far as two preliminary points with regard to the consideration by Tribunal and issuance of notification by the Governor are concerned, the same are required to be considered before going into further issues involved herein.

As far as the question in respect of consideration by the Tribunal is concerned, we are of the view that the submission of the petitioners is correct. Section 83 (2) of the Act speaks that any Mutawalli of the Wakf or any other person aggrieved by an order made under the Act may make an application under the said rule to the Tribunal for determination of any dispute, question or other matter relating to the Wakf.

So far as the point as agitated by learned Additional Advocate General about issuance of notification is concerned, he has placed before us a notification, bearing No. 3/1/2/75--CX-I, dated 28th June, 1975, to show the power of His Excellency the Governor of Uttar Pradesh. Such notification speaks as follows:

"In exercise of the powers conferred by clause (2) of Article 166 of the Constitution of India and in supersession of Government's notification no. C-134/XXV-CX, dated January 26, 1950, the Governor is pleased to make the following rules, namely:

1. These rules may be called the Uttar Pradesh Authentication (Orders and other Instruments) Rules, 1975.

2. All orders of instruments made or executed by or on behalf of the Government of the State shall be experessed to be made or executed in the name of and by order of the Governor.

3. Every order or instrument of the Government of the State shall be signed by a Secretary, Special Secretary, Joint Secretary, Deputy Secretary or Under Secretary to the Government of Uttar Pradesh or by such other officer as may be specially empowered in that behalf by the Governor and such signature shall be deemed to be proper authentication of such order or instrument."

Thus, we are of the view that submission of learned Additional Advocate General about issuance of notification is correct in view of the aforesaid notification dated 28th June, 1975.

Therefore, these two points are resolved. No further discussion is needed.

So far as the time limit for filing reply to the show cause notice i.e. 15 days or 7 days is concerned, we find from the provision of law that the words "reasonable period" are used and if the reasonable period cannot be construed as 7 days period, then in that case the petitioners are to apply by saying that said period is not reasonable, therefore, further time is required to be given. Factually, Mr. Mathur has shown that the petitioners have made the prayer for giving more time. Therefore, now it appears from the submission of Mr. Mathur that the core issue is with regard to strict compliance of the order under Section 99 of the Act which, according to him, has not been done and the scope cannot be enlarged by way of filing an affidavit, which the State is trying to do hereunder. To that extent, learned Additional Advocate General contended that the reasons may not be reflected from the notification but reasons should be there in the record and in the instant case, the same are in the record itself, therefore, there was no necessity for giving reasons in the order impugned.

Upon hearing the parties at length, we observe that the dispute is about violation of the principles of natural justice. Factually, the Board has been superseded and by now the Administrator has taken charge, therefore, at this stage, we cannot set the clock back. Therefore, the purpose of the petitioners will be sub-served if a post-decisional hearing on all the issues on merit will be given to them by the authority concerned within a period of one month from the date of communication of this order and a reasoned order is passed thereon by the authority concerned. If on such post decisional hearing the petitioners succeed, then the order impugned hereunder will become inoperative automatically and if the petitioners do not succeed, the order impugned will prevail.

Accordingly, the writ petition is disposed of at the stage of admission on contest, however, without imposing any cost.

(Justice Amitava Lala,ACJ)

I agree.

(Justice Anil Kumar)

Dated: 10th September, 2012.

Ravi/SKT/-

Hon'ble Amitava Lala, ACJ.

Hon'ble Anil Kumar, J.

The writ petition is disposed of, however, without imposing any cost.

Dt./-10.09.2012.

Ravi/SKT/-

For order, see order of the date passed on the separate sheets (five pages).