Managing Committee, Waqf Haji ... vs Lt. Governor And Ors.
2007 Latest Caselaw 1760 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The writ petitioner seeks orders quashing the resolution of the Delhi Wakf Board (hereafter "the Board") dated 7-11-1994 and the order dated 2-8-1996 removing it from its Mutwalliship.

2. The brief facts of the case are that the Waqf Hazi Abdul Qayyum (hereinafter, the `Waqf') was established in year 1902 in respect of certain properties. The appellant Committee started managing them since 6.4.1985. A complaint was received from the Citizen Action Committee, against the appellant-Committee. On receipt of this complaint, the Board initiated an inquiry and appointed Shri Shakil Ahmed Syed, Advocate, Supreme Court as the Inquiry Officer, through its resolution of 19.3.1991. The Inquiry Officer submitted his report on 18.10.1994. The findings were considered and accepted; the Board confirmed them through its resolution dated 7.11.1994. The Petitioner-Committee was therefore dissolved and the Board resumed direct management of the Waqf properties.

3. The decision of the Board to dissolve the Petitioner and take over the management, was challenged as motivated, at the instance of unscruplous elements with vested interests, led by the Chairman of the Board, Shri Siraj Pracha. It is averred that the father of Shri Pracha, had been removed from the Mutawalliship of the Waqf by the Board, in 1978; his appeal against that order was rejected by the Lt. Governor, on 9.8.1978. The decision was further confirmed by this Court and the Supreme Court as well. It is alleged that Shri Siraj Pracha, was the attorney of his father and had represented his case before the law courts, and was in managing the affairs of the Waqf without any legal sanction. It is averred that the Waqf Board erred in law, in taking cognizance of a false complaint from respondent No.2, which did not have any locus standi in that regard. The manner of appointment of inquiry officer, conduct of proceedings by the inquiry officer, his findings, as well as the resolution of the Board have been challenged as illegal. It is also alleged that the Board's decision was wrongly recorded.

4. Mr. Mustaq Ahmed learned Counsel submitted that the complaint against the petitioner Committee was malicious and baseless. It was contended that the committee which engineered and manipulated the entire process leading to ouster of the committee, had no legal basis or locus standi. Its object was motivated by the desire somehow displace the petitioner, which had done efficient public work. On this complaint, the Board went ahead and appointed an Inquiry Officer to look into the allegations made in the complaint. Counsel submitted that the complaint of respondent No.2 was not supported by any affidavit as required under Section 44 of the Act.

5. It was urged that the Inquiry Officer did not act in accordance with Rule 14(1) & (2) of the Delhi Waqf Board Rules, 1963 (hereinafter, the Rules) which mandated that notice should be served upon the parties. No notice was served upon the petitioner; the Inquiry Officer did not give the petitioner full and effective opportunity to defend himself. Even the request to cross examine witnesses was not acceded to by the Inquiry Officer. He also submitted that the Inquiry Officer erred in overlooking that the complainant witnesses did not depose before the Inquiry Officer. There was an affidavit of Shri Mohd. Afzal; yet that affidavit was not in accordance with the law. Therefore all charges should have been dropped by the Inquiry Officer.

6. Learned Counsel urged that the Inquiry Officer violated Rule 14(7) of Rules which required that the Inquiry Officer shall announce its decision within 15 days from the date of completion of the inquiry. The inquiry was completed in April, 1994 while the report was given in October, 1994. The impugned order violated Section 43(2) of the Act, which provides the dissolution of the Managing Committee of a Waqf must be supported by a majority of not less than three-fourth of the members of the Board.

7. Counsel for the appellant also faulted the findings of the Inquiry Officer. The finding regarding Shop No.648 where the petitioner was found guilty of creating three separate shops and creating two new tenancies in the same premises without obtaining permission either of the Board or the Municipal Corporation of Delhi (MCD). The second finding objected to was that the petitioner was held guilty of constructing two rooms over the premises of property No.655-A, and had opened a gate inside the lane without the permission of the Board. These findings are attacked on the ground that the Inquiry Officer failed to appreciate the facts in their proper perspective.

8. Mr. Ahmed lastly contended that the present composition of the Board is not inimically inclined against the petitioner, and had even granted permission and allocated some works.

9. The respondents were unrepresented at the time of hearing. The petitioner's counsel was heard, and the case was reserved for judgment.

10. The petitioner had challenged the impugned orders before the Lt. Governor under Section 43(4-A) of the Wakf Act. The said appeal was heard and finally decided, on 2-8-1996. The findings in the appellate order are as follows:

At the outset, I will deal with the contention that the decision of the Waqf Board to dissolve the appellant-Committee was taken at the behest of a group of unscrupulous persons with vested interests, which included the present Chairman of the Board, Shri Siraj Pracha. I must mention, that from the records it is clear that the action to inquire into the activities of the appellant-Committee was initiated by the Board much before Shri Siraj Pracha took over the Chairmanship of the Board. There is nothing that would substantiate this allegation that the impugned order was passed at his behest. Action was initiated in the normal course on the receipt of a complaint. The decision of the Waqf Board to dissolve the appellant-Committee does not appear to have any link or relevance either to the fact that the father of the present Chairman had once held the Muttawalliship of the Waqf in question, or by the fact that the present Chairman had appeared on behalf of his father in different courts to defend his case. I therefore, reject the contention of counsel for the appellant that the impugned order was passed at the behest of the Board Chairman, Shri Piracha.

I find that the impugned order was passed on the basis of the findings of the Inquiry Officer who was appointed to look into the complaints of misuse of the waqf property by the appellant-Committee. In this regard, I must say that the Board was well within its rights to take up the complaint from the Citizen Action Committee (Respondent No. 2). I also find that the Inquiry Officer has conducted the inquiry with due diligence and observed the principles of natural justice in that he gave ample opportunity to the parties to make submissions before him before he concluded the proceedings. The submissions of the appellant had been duly considered by the Inquiry Officer. I, therefore, reject the contention that the appellant was not given proper opportunity to plead his case.

Insofar as the findings of the Inquiry Officer are concerned, I must say that this was a matter to be deliberated in the Board when it took up the report for consideration in its meeting of 7.11.1994. Counsel for the appellant has challenged the findings of the Inquiry Officer; his submissions have been discussed early in this order and I need not repeat them. The matter was placed before the Board which had the full authority to deliberate on the findings of the Inquiry Officer and take a decision. It is clear that after due deliberation in the meeting of 7.11.1994, the Board accepted the findings of the Inquiry Officer, and resolved to take over the management of the Waqf in question. In fact the impugned order mentions that the "findings of the Inquiry Officer as conveyed to the members of the Board, was thoroughly considered, accepted and confirmed by the Board." In case the members of the Board were not satisfied, they should have protested immediately,. The protests now made, appear to be an afterthought. It may be that a few members were not satisfied with the decision of the Board, but that does not vitiate the decision of the Board as long as the resolution was passed by a three-fourth majority. I would rather say that those who did not agree with the decision of the Board and comprised of more than one-fourth of the strength of the Board, should have at least filed a petition stating that the resolution of the Board was not in order. However, there is nothing on record to that effect. Further, in respect of the delay in the submission of the report of the Inquiry beyond the stipulated period, I am of the view that this is really not of such significance as to vitiate the inquiry itself.

11. The above narrative of facts show that upon receiving complaints as to mismanagement and misfeasance by the petitioner committee, the Board made an order to inquire into the allegations. It appointed a neutral Inquiry Officer, i.e. an Advocate. The proceedings before the Inquiry Officer were held over a period of two years. His report discloses that the approach was impeccable; indeed he took great pains to consider each charge meticulously and also inspected the site. The Inquiry Officer's impartiality may be seen from the fact that he did not find the petitioner guilty of many charges, some of which were quite serious. I am not persuaded by the charge that the Inquiry Officer conducted the proceedings in violation of principles of natural justice, or otherwise in a manner prejudicial to the petitioner; there is no evidence in support of such contention. The report has discussed all the charges, as well as the evidence led in support of the charges and the evidence/ materials placed on record by the petitioner in his defense. These were dealt with fairly.

12. The allegation that the action to take over the management of the Waqf Board was at the behest of the Chairman, does not appear to be borne from the record. The said Chairman, Shri Pracha, was neither the Chairman nor a member of the Board when the inquiry proceedings were initiated. It appears that inquiry can be initiated against the Mutawalli, i.e. the appellant-Committee in the present proceedings, by the Board either on an application or on its own motion. No provision was brought to the notice of the court which obliges issuance of notice before initiating an inquiry against any Mutawalli or a Waqf. In this case, factually, notice the proceedings were given to the petitioner-Committee by the Board as well as by the Inquiry Officer. The inquiry officer's report shows that public notices of the inquiry proceedings were published in the leading newspapers. In response the Petitioner appeared before the Inquiry Officer and submitted a detailed reply. It further led evidence in support of its case.

13. As far as the allegation of creating new tenancies illegally or carrying out unauthorised construction in the waqf property were concerned, the inquiry officer held that those charges were substantiated. An attempt was made during the hearing by the petitioner's counsel to rely upon an alleged report of the local residents, supported by the Municipal Corporation of Delhi and marked to the local police station. However, a copy of that appears to have been placed for the first time, in these writ proceedings. Furthermore, it was not marked in the pleadings; the respondents did not have any occasion to traverse the pleadings in that regard. There is nothing to show that such material is not disputed, or that it was part of the records of inquiry, or the record before the Lt. Governor.

14. The findings are that no permission was obtained by the petitioner-Committee had only referred to a report from the Addl. DCP of the Central Distt. That document mentioned that no unauthorised or illegal construction was going on in the concerned property. Yet, as observed in the proceedings by the Lt. Governor, this did not lead to inference that there was sanction from the municipal authorities. As regards the allegation that the requisite majority of the Waqf Board did not support the resolution of 7.11.1994, there is nothing to show that it was not by a majority of three-fourth members of the Board.

15. The above show that the Board's action was guided by findings of the Inquiry officer; nothing was disclosed to support the allegation that he acted in violation of principles of natural justice, or was biased against the petitioner. The resolution of the Board, accepting his report were challenged before the Lt. Governor; his findings rejected the plea of legal infirmity of the Board's action. Though the order of the Lt. Governor has not been challenged, without going into technicalities, it may be said that the action here is by way of seeking judicial review over findings by a domestic tribunal duly endorsed by a statutory authority.

16. In exercising the power of judicial review or superintendence over tribunals/subordinate Courts, under Articles 226 or under Article 227 of the Constitution, the Court has a limited jurisdiction. After considering all major decisions outlining the powers of High Courts, under Articles 226 and 227 of the Constitution of India, (including judgments such as L. Chandra Kumar v. Union of India ; Chandrasekhar Singh v. Siya Ram Singh , Hari Vishnu Kamath v. Ahmad Ishaque and T.C. Basappa v. T. Nagappa ) the Supreme Court restated the law, inter alia, as follows, in Surya Dev Rai v. Ram Chander Rai :

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

17. The main area of grievance relates to denial of natural justice; here there is no material suggestive of such unacceptable behavior by the Board or the Inquiry officer. As regards specific findings, there is no finding or order that is so unreasonable or fanciful which would attract the threshold required of judicial review. As far as the challenge to the action based on legal provisions is concerned, such a ground has not been made out. It is established that wherever the litigant attacks findings of a domestic tribunal or action based on it, the endeavor of the court is to see whether the procedure or facet denied is such that it would have caused prejudice. This court cannot conclude, on the materials placed before it, that there was any prejudice caused to the petitioner.

18. In view of the above findings, there is no infirmity with the orders of the Board or the Lt. Governor. The petition therefore has to fail; it is dismissed without order on costs. Rule discharged.