Sgn Hafeez Pasha vs The State Of Andhra Pradesh
2023 Latest Caselaw 2019 AP

          HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI

                    MAIN CASE No.W.P.No.9030 of 2023
                                PROCEEDING SHEET

Sl.                                                                        Office
No      DATE                             ORDER                             Note
02    18.04.2023   RRR, J
                         1.   Sri Arifullah, learned Standing Counsel
                   for the Waqf Board and the learned Government
                   Pleader for Minority Welfare seeks time for filing
                   their respective counters in the main writ petition.

                         2. The petitioner was earlier functioning as
                   the Sajjadanasheen cum Mutawalli of Dargah of
                   Syed Shah Haji Khwaja Rahamatullah Saheb Peer
                   @ Nayab-e-Rasool and Masjid situated at A.S.Peta,
                   SPSR Nellore District.    The 1st respondent-Waqf

Board by a resolution bearing No.704 dated 16.02.2023 had suspended the petitioner as a Mutawalli of the said shrine for a period of ten (10) days. The petitioner challenged the said resolution by way of W.P.No.4833 of 2023. The learned Single Judge after hearing the matter at length had pronounced orders on 21.03.2023 directing the Waqf Board to file a counter within three (03) weeks and posted the matter to 17.04.2023 along with W.P.No.5273 of 2023.

3. As the initial suspension could not cross more than ten days in terms of Section 64(5) of Waqf Act, 1995, a notice had been issued to the petitioner on 09.03.2023 requiring the petitioner to show cause why the initial period of suspension should not be extended. The petitioner is said to Contd...

RRR,J W.P.No.9030 of 2023 have filed his explanation on 14.03.2023 raising various objections including the contention that the Chief Executive Officer, who had issued the notice was not empowered to issue such notice. In a parallel development, the term of the Waqf Board had expired on 12.03.2023. As the election for the members of the Waqf Board had not been taken up and as nominations by the Government for the nominated posts have also not been made, the Government had issued G.O.Rt.No.No.70 dated 14.03.2023 appointing Smt.Shaik Shereen Begum, IPS, as the competent authority/Special Officer to the State Waqf Board. It may also be noted that, the government had issued G.O.Ms.No.1 dated 07.03.2023 appointing an Election Officer for conduct of the election to the said Waqf Board.

4. It may also be noted that, the Waqf Board had issued a Resolution No.705 dated 28.02.2023 extending the period of suspension of the petitioner. This extension of suspension was challenged by the petitioner by way of W.P.No.5273 of 2023 which has now been posted along with W.P.No.4833 of 2023 and both the writ petitions are pending disposal. It may also be noted that the petitioner being aggrieved by the interim order passed in W.P.No.5273 of 2023 has filed writ appeal No.324 of 2023 which is pending before a Division Bench of this Court.

5. The order passed by the learned Single Judge, which is the subject matter of the appeal, Contd...

RRR,J W.P.No.9030 of 2023 was passed on 06.03.2023 in W.P.No.5273 of 2023 suspending Resolution No.705 passed by the Waqf Board with a further direction to hear the respondent before passing a fresh order and after affording a reasonable opportunity of hearing to the petitioner.

6. The Special Officer in pursuance of these directions, passed an order on 16.03.2023 extending the period of suspension.

7. Aggrieved by the said order dated 16.03.2023 and the consequential proceedings of the Chief Executive Officer dated 17.03.2023, the petitioner has filed the present writ petition. The reliefs sought by the petitioner in this writ petition are twofold. Firstly, the petitioner contends that there is no provision in the Waqf Act for appointment of a Special Officer and secondly, the order passed by the Special Officer on 16.03.2023 would have to be set aside both on the grounds of lack of jurisdiction and on the ground of violation of principles of natural justice. As the petitioner was not given an adequate opportunity of hearing before the said order was passed. There is a subsidiary ground raised by the petitioner that, the basis for the said order, which is the show cause notice issued by the Chief Executive Officer, is itself invalid as the Chief Executive Officer is not empowered to issue such a notice.

8. Sri P.Veera Reddy, learned Senior Counsel appearing for the Waqf Board would contend that Sections 97 and 99 of the Waqf Act, Contd...

RRR,J W.P.No.9030 of 2023 1995, would confer power on the State Government to appoint a Special Officer and in any event such appointment is necessary as there is no Waqf Board functioning today. He further submits that there has been no violation of principles of natural justice as the petitioner had been given adequate opportunity of hearing before orders had been passed by the Special Officer.

9. Sri M.V.S.Suresh Kumar, learned Senior Counsel appearing for the petitioner would submit that the petitioner was in jail when the notice dated 09.03.2023 was issued and the same was not served on the petitioner but on the mother of the petitioner at SPSR Nellore and an explanation had to be submitted on account of the peremptory language in the show cause notice requiring the petitioner to file his objections on or before 14.03.2023. He would further submit that, the said notice could not be prepared with appropriate instructions from the petitioner and in any event neither the petitioner nor the learned counsel appearing for the petitioner were given an opportunity of hearing before the Special Officer. He would submit that, the contents of the impugned order itself shows that the Special Officer is relying upon the report given by the CEO of the Waqf Board regarding the nature of submissions made by the learned counsel for the petitioner.

10. Sri P.Veera Reddy, learned Senior Counsel appearing for the Waqf Board would Contd...

RRR,J W.P.No.9030 of 2023 submit that the petitioner was given adequate opportunity and all documents which were considered by the Special Officer for issuing the order of extension of suspension were within the knowledge of the petitioner and he had been given adequate opportunity of rebutting the said documents and grounds raised against him.

11. The present order dated 16.03.2023 was issued on the basis of a show cause notice dated 09.03.2023. The reply dated 14.03.2023 given by the petitioner was in relation to the facts set out in the show cause notice dated 09.03.2023. The petitioner was not given an opportunity of hearing by the Special Officer as the hearing was conducted by the CEO.

12. Without going into the question of whether the CEO was empowered to issue the notice or conduct such a hearing, the fact remains that an order has now been passed by the Special Officer without giving an opportunity of personal hearing to the petitioner.

13. The Hon'ble Supreme Court of India in the case of G.Nageswara Rao v/s Andhra Pradesh State Road Transport Corporation1 had categorically held that the passing of an order by an authority without hearing the petitioner and on the basis of the report given by the another authority who heard the petitioner would be invalid. This principle does not appear to have Contd...

AIR 1959 SC 308

RRR,J W.P.No.9030 of 2023 been reversed or altered by any subsequent judgment and would still hold the field.

14. It would have to be held that opportunity of hearing has not been given to the petitioner.

15. In the circumstances, it would be appropriate that such opportunity would have to be given to the petitioner before any steps are taken against him including extension of the suspension. In such circumstances, the impugned order dated 16.03.2023 issued by the Special Officer in proceedings F.No.02/M/NLR/2017/Z- IV/Supply is suspended. However, this would not preclude the Special Officer from giving an opportunity of hearing to the petitioner and to pass a fresh order superseding the impugned order. Needless to say, the said hearing would be conducted by the Special Officer herself and the order passed by the Special Officer shall contain reasons as to why a decision, either way, is being taken by her.

16. This fresh order, if any passed by the Special Officer, would also abide by the result of the writ petition, as the question of whether a Special Officer can be appointed by the Government on account of the absence of elected and nominated members of the Waqf Board, would remain to be answered.

17. Post on 19.06.2023.

_________ RRR, J RKS

RRR,J W.P.No.9030 of 2023