Indore Wakf Mazaar Hazrat Nahar ... vs The State Of Madhya Pradesh
2022 Latest Caselaw 9648 MP

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                                                    W.A. No.654/2022


  HIGH COURT OF MADHYA PRADESH: BENCH INDORE

                            BEFORE
              HON'BLE SHRI JUSTICE VIVEK RUSIA
                                &
     HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

                   ON THE 14th OF JULY, 2022




                WRIT APPEAL No. 654 of 2022

  Between:-
  INDORE WAKF MAZAAR HAZRAT NAHAR SHAH WALI SAHAB
  WAKE MAUJA KHAJRANA DISTRICT INDORE THROUGH ITS
  PRESIDENT HAJI ARAB ALI PATEL S/O GAFFUR PATEL
  KHAJRANA. INDORE. (MADHYA PRADESH)
                                                 .....APPELLANT
  (SHRI AMIT      KHATRI,     LEARNED    COUNSEL     FOR      THE
  PETITIONER)

  AND

   THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
1. SECRETARY DEPARTMENT OF BACKWARD CLASSES AND
   MINORITY VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
   MP WAKF BOARD THROUGH CEO OFFICE NEAR TAJUL
2.
   MASJID BHOPAL (MADHYA PRADESH)
   THE ADMINISTRATOR MP WAKF BOARD OFFICER NERA
3.
   TAJUL MASJID (MADHYA PRADESH)
4. SIRAJ KHAN TEHSILDAR INDORE (MADHYA PRADESH)
                                               .....RESPONDENTS
  (SHRI  VAIBHAV   BHAGWAT,     GOVT.  ADVOCATE               FOR
  RESPONDENTS/STATE No.1 ON ADVANCE COPY.)
This appeal coming on for admission this day, JUSTICE VIVEK

RUSIA passed the following:
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                                                      W.A. No.654/2022


                               ORDER

Heard on the question of admission and interim relief. The appellant/petitioner has filed the present writ appeal being aggrieved by the order dated 13.5.2022 whereby W.P. No.4435/2021 has been dismissed.

Facts, in brief, are as under :

1. The petitioner is a registered Wakf in M.P. Wakf Board with its Registration No. 40/387. Vide order dated 23.12.2019 a Managing Committee of the petitioner was constituted under the Chairmanship of Haji Arab Ali Patel. Thereafter, vide order dated 17.3.2020, the Chief Executive Officer (CEO), M.P. Wakf Board, Bhopal has extended the period of the Committee for three years. The CEO with approval of the Administrator of the Wakf Board, vide order dated 12.2.2021 in the exercise of powers conferred u/s. 67(2) of the Wakf Act, 1995 (Amended 2013) has superseded the Committee w.e.f. 17.3.2020.

2. Being aggrieved by the aforesaid order, the petitioner filed the writ petition challenging the validity of the impugned order dated 12.2.21 inter alia on the ground that the CEO of the Board is not competent to pass the said order of supersession u/s. 67 of the Wakf Act without the approval of the Board which is not in existence. Hence, the impugned order is bad in law. Learned counsel appearing for the petitioner has placed reliance on a judgment passed by the Full Bench of this Court in the case of Girija Shankar Shukla V/s. Sub Divisional Officer, Harda : 1973 MPLJ 411.

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W.A. No.654/2022

3. After hearing the learned counsel for the parties and perusing the case record, the learned Writ Court has dismissed the writ petition, hence the present writ appeal before this Court.

We have heard the learned counsel for the petitioner/appellant and perused the material available on record.

4. Section 13 of the Wakf Act provides establishment and constitution of the Wakf Board in the State. Section 14 provides a composition of the Board which shall consist of a Chairman, one or two members appointed by the State Government to be elected from each of the electoral colleges; one or two members nominated by the State Government representing the eminent Muslim Organisation, etc. Section 15 of the Act provides 5 years term for the members of the Board. Section 21 provides a mode of filling vacancies. Section 23 provides the appointment of the CEO. According to this, there shall be a CEO of the Board who shall be a Muslim and shall be appointed by the State Government in consultation with the Board by notification in the Official Gazette. The duties and powers of the CEO are provided in Section 25. Section 25(c) provides that the CEO shall do generally of such acts as may be necessary for the control, maintenance and superintendence of Wakfs. Section 32 provides the powers and functions of the Board.

5. According to the petitioner, Section 67 of the Wakf Act empowers the CEO to pass an order of supersession of the Committee or Management of the Wakf after the approval by the Board , but in the present case, since there is no Board in function and the State Government has given the additional charge of

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W.A. No.654/2022

Administrator of M.P. Wakf Board to a CEO of Jila Panchayat who is not competent to discharge the statutory function assigned to Board under the Act , hence the impugned order is bad in law and is liable to be set aside.

6. Since the term of the Chairman and the Members of the Board had come to an end on 3.12.2018 and the vacancies have not been filled till date , therefore, in order to run the Board, the State Government vide order dated 19.1.2019 appointed Shri Nisar Ahmed, Retired IAS as an Administrator of the Wakf Board for three months or till the constitution of new Board which ever is later. Thereafter, vide order dated 31.3.2020, Mr Satish Kumar, CEO, Jila Panchayat and Addl. Collector has been given the additional charge of Administrator of M.P. Wakf Board.

7. Section 99 of the Wakf Act gives power to the State Government to supersede the Board if the Board is unable to perform or has persistently made default in the performance of, the duty imposed on it by order under this Act and upon supersession of the Board, all the members shall vacate their office as such members and all the powers and duties which may by order under the provisions of this Act, be exercised or performed by or on behalf of the Board shall, during the period of supersession, be exercised and performed by such person or persons as the State Government may direct. Section 99 of the Wakf Act is reproduced below :

"99. Power to supersede Board.--(1) If the State Government is of 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

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W.A. No.654/2022

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 Board's continuance is likely to be injurious to the interests of the wakfs in the State, the State Government may, by notification in the Official Gazette, supersede the Board for a period not exceeding six months:

Provided that before issuing a notification under this sub-section, the State Government shall give a reasonable time to the Board to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Board:

Provided further that the power of the State Government under this section shall not be exercised unless there is a prima facie evidence of financial irregularity, misconduct or violation of the provisions of this Act.] (2) Upon the publication of a notification under sub- section (1) superseding the Board,--

(a) all the members of the Board shall, as from the date of supersession, vacate their offices as such members;

(b) all the powers and duties which may, by or under the provisions of this Act, be exercised or performed by or on behalf of the Board shall, during the period of supersession, be exercised and performed by such person or persons as the State Government may direct; and

(c) all properties vested in the Board shall, during the period of supersession vest in the State Government.

(3) On the expiration of the period of supersession specified in the notification issued under sub-section (1), the State Government may--

(a) extend the period of supersession by another six months with reasons to be recorded in writing and, the period of continuous supersession shall not exceed more than a year; or

(b) reconstitute the Board in the manner provided in section 14."

(Emphasis supplied))

It is clear from sub-section (2)(b) of section 99, as aforesaid, that

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any person or persons can perform the duties and functions by or on behalf of the Board, as directed by the State Government. There is no question of holding the current or additional charge to any person. It is not necessary for the State Government to direct any person from the Administrative Services or other Services to perform by or on behalf of the Board. Any person/persons who are directed u/s. 99(2)(b) of the Wakf Act can perform as an Administrator of the Board by or on behalf of the Board. Therefore, it makes no difference whether Mr Satish Kumar has been given an additional charge or the current charge of the Administrator or not, he is a person who has been directed to do the job of an Administrator of the Board. Since he is already posted as Chief Executive Officer of Jila Panchayat hence the word addition charge has been mentioned in the order. In view of the foregoing discussion, we find no ground to interfere with the impugned order passed by the writ court and this appeal is liable to be dismissed.

Accordingly, this writ appeal fails and is hereby dismissed in limine.

          [ VIVEK RUSIA ]       [AMAR NATH (KESHARWANI)]
              JUDGE.                     JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.07.18 17:16:52 +05'30'