Andhra Pradesh High Court - Amravati
Proceeding Sheet vs Section 64(5) Of The Waqf Act on 6 March, 2023
HIGH COURT OF ANDHRA PRADESH
MAIN CASE No:W.P.No.5273 OF 2023
PROCEEDING SHEET
SL. DATE ORDER OFFICE
NO. NOTE
RNT,J
2. 06.03.2023
On 03.03.2023, this Court passed the
following order:-
"1. Sri P. Veera Reddy, learned Senior
Counsel assisted by Sri Mohd. Gayasuddin,
learned Standing Counsel for respondent
Nos.1 to 3, raised an objection that the State
of A.P. has not been impleaded as party and
therefore, the petition suffers from non-
impleadment of necessary party.
2. It has been submitted by
Sri M. V. S. Suresh Kumar, learned Senior
Counsel, assisted by Sri A. S. C. Bose,
learned counsel for the petitioner, that
Section 64(5) of the Waqf Act, 1995
provides for giving the concerned a
reasonable opportunity of being heard
against the proposed action of extension of
the period of suspension. He has pointed
out that in the resolution of the Board for
extension of the period of suspension, the
opinion of the Enquiry Officer/C.E.O. is
accepted.
3. Resolution of the Board shows that the
Board, consequent to the findings of the
Enquiry Officer and as per the available
record, resolved to extend the period of
suspension.
4. The petitioner was issued show cause
notice also suspending him for a period of
ten days, on 20.02.2023, against which, he
filed the reply, dated 23.02.2023, also
demanding certain documents to submit
detailed reply, which were provided on
23.02.2023 itself.
SL. DATE ORDER OFFICE
NO. NOTE
5. However, in view of Section 64(5) of the
Waqf Act, the Board has to take decision for
extension of the period of suspension
beyond ten days after granting reasonable
opportunity of being heard against the
proposed action. Consequently, prima facie,
the findings of the Enquiry Officer as also
the material available on record, which has
been relied upon by the Board and is
referred in the resolution for passing the
impugned order, was also required to be
provided to the petitioner, being part of
affording opportunity in terms of the proviso
to Section 64(5) of the Waqf Act.
6. Leaving all the questions open to be
raised on the next date, on the request of
Sri P. Veera Reddy, learned Senior Counsel,
the matter is posted to 06.03.2023, in the
motion list to enable him to obtain
instructions as to 1) on what material, as
referred in the resolution, the decision has
been taken to extend the period of
suspension beyond initial ten days? and 2) if
such material was provided to the petitioner
to make compliance of the proviso to Section
64(5) of the Waqf Act of giving reasonable
opportunity to the petitioner against the
proposed action?"
2. Sri P.Veera Reddy, learned Senior Advocate,
assisted by Mohammed Gayasuddin, learned
submits that the Board's decision to extend the
period of suspension of the petitioner beyond 10
days was passed after the petitioner was issued the
show cause notice, to which the petitioner
submitted the reply, upon which a preliminary
enquiry report was submitted by the Chief
Executive Officer, the copy of which was given to
SL. DATE ORDER OFFICE
NO. NOTE
the Board and considering the preliminary enquiry
report the Board passed the order. He submits that
the copy of the preliminary enquiry report was
furnished to the petitioner, not before passing of
the impugned order but later on.
3. He further submits that in view of Section
64(5) r/w the proviso, the Board has the power to
suspend the Muthawalli until the conclusion of the
enquiry and in view of the proviso, if the suspension
is for a period of 10 days, any opportunity of
hearing to Muthawalli is not required to be given
but in the case of a suspension period beyond 10
days, the opportunity of hearing is required.
According to his submission, such requirement
under the proviso was complied with as the
petitioner was given the show cause notice to which
the petitioner submitted reply, though the petitioner
asked to inspect so many documents and thereafter
to furnish the detailed reply. He submits that the
copy of the preliminary enquiry report of the Chief
Executive Officer is not required to be given to the
petitioner as the proviso does not provide for the
same specifically.
4. Sri M.V.S. Suresh Kumar, learned Senior
Advocate, assisted by Sri A.S.C. Bose, learned
counsel for the petitioner submits that, it is for the
Board to issue the show cause notice as also to
consider the reply and the Chief Executive Officer
SL. DATE ORDER OFFICE
NO. NOTE
has no power either to issue notice or to consider
the reply or to submit the preliminary enquiry
report based upon which report, order of
suspension beyond 10 days cannot be sustained.
He further submits that in view of the proviso, there
is also non-compliance with the reasonable
opportunity to be afforded to the petitioner as the
copy of the preliminary enquiry report was not
provided to the petitioner.
5. Learned counsels for the respondents pray
for and are granted four (04) weeks time to file
counter affidavit.
6. If counter affidavit is filed, the
reply/rejoinder affidavit, if any, may be filed within
a further period of two (02) weeks.
7. Prima facie, the Court is of the view, that
under the proviso, which reads as under, giving
reasonable opportunity of being heard, includes
giving of opportunity against the adverse material,
which is the basis of passing the order of
suspension period beyond 10 days. Admittedly, the
copy of the preliminary enquiry report of the Chief
Executive Officer, upon consideration of which the
petitioner is placed under suspension for a period
beyond 10 days, was not provided to the petitioner.
8. However the Board has already passed
resolution/order taking the direct management of
the Waqf Institution, which is already under
SL. DATE ORDER OFFICE
NO. NOTE
challenge in W.P.No.4833 of 2023 in which the
judgment/order is reserved.
9. In view of the aforesaid, case for grant of
interim order is made out.
10. The operation of the impugned order of
suspension shall remain stayed, till the next date of
listing, but keeping it open to the
respondent/Andhra Pradesh State Waqf Board, to
pass fresh order, after affording reasonable
opportunity of hearing to the petitioner. However, it
is further provided that the stay of suspension
order, does not entitle the petitioner to be given the
charge of the Muthawalli, which matter shall remain
subject to the order/judgment to be passed in
W.P.No.4833 of 2023.
11. List on 17.04.2023.
12. When the matter is next listed, the name of
the respondents counsel shall be printed.
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RNT,J
Scs
