Management Committee Wakf Dargah ... vs The State Of Madhya Pradesh
2022 Latest Caselaw 4144 MP

                                    1
                IN THE HIGH COURT OF MADHYA PRADESH
                             AT JABALPUR
                                   BEFORE
                     HON'BLE SHRI JUSTICE VISHAL DHAGAT
                          ON THE 25th OF MARCH, 2022

                      WRIT PETITION No. 501 of 2022

         Between:-
         MANAGEMENT COMMITTEE WAKF DARGAH
         ZINDA SHAH WALI        KATANGI  JABALPUR
         THROUGH ITS CHAIRMAN ZAHEER UL ANWAR
         S/O SHEIKH SATTAR AGED ABOUT 32 YEARS R/O
         WARD NO. 5, MAIN ROAD KATANGI, JABALPUR
         (M.P.) (MADHYA PRADESH)

                                                               .....PETITIONER
         (BY SHRI DHARMENDRA SONI, ADVOCATE)

         AND

1.       THE STATE OF MADHYA PRADESH THROUGH
         PRINCIPAL SECRETARY MINISTRY OF MINORITY
         WELFARE    AND    WAKF   ADMINISTRATION
         VALLABH BHAWAN, DISTRICT BHOPAL (M.P.)
         (MADHYA PRADESH)

2.       MADHYA PRADESH WAKF BOARD THROUGH ITS
         CHIEF EXECUTIVE OFFICER TAJ CAMPUS NEAR
         TAJUL MASJID    BHOPAL (M.P) (MADHYA
         PRADESH)

3.       AD M IN ISTR ATOR MADHYA PRADESH WAKF
         B O A R D TAJ CAMPUS NEAR TAJUL MASJID
         BHOPAL(M.P) (MADHYA PRADESH)

                                                            .....RESPONDENTS
         (BY SHRI NAMAN NAGRATH, SENIOR ADVOCATE WITH SHRI
         SATISH KUMAR DIXIT, ADVOCATE FOR INTERVENER AND SHRI
         KAPIL DUGGAL, RESPONDENT NO.2 AND SHRI K.S. BAGHEL,
         GOVERNMENT ADVOCATE)

      This petition has come up for hearing on this day, the court passed the
following:
                                     ORDER

Shri Naman Nagrath, learned senior counsel appearing for Intervener has argued the case during first half but he could not appear in the second half to complete his argument, therefore, no order is passed on application for Intervention.

Respondent Nos.2 and 3 had filed IA No.3712/2022 application for vacating interim stay vide order dated 10.01.2022.

Learned counsel appearing for respondents No.2 and 3 submitted that

interim order dated 10.01.2022 has been passed in favour of petitioner on the ground that Administrator has no authority of law, competence and jurisdiction to pass order of supersession. Said power of supersession under Section 67 (1) of the Wakf Act, 1995 is vested on Wakf Board.

Learned counsel appearing for respondents submitted that said issue has already been considered and put to rest by order dated 20.09.2021 passed in WP No.4435/2021 {Indore Wakf Mazaar Hazrat Nahar Shah Wali Sahab Wake Mauja Khajrana District Indore Vs. The State of Madhya Pradesh and Others}. In said case, it was held as under:-

"In view of the aforesaid discussion, regard being had to the provisions under clause (b) of sub-section (2) of Section 99 of the Waqf Act, prima facie; the impugned orders Annexure P/1 and Annexure P/5 are passed by the authorities (respondents No.2 and 3) by virtue of their offices as Chief Executive Officer and Administrator held by them substantively. The orders so passed by the said authorities cannot be said to be without authority and jurisdiction."

It is submitted that impugned order has been passed by authority holding substantive charge and not current charge. Counsel for respondent also relied on order dated 01.05.2020 passed by this Court in WP No.15632/2019 [P.S. Dhanwal Vs. State of M.P.] which has been affirmed by Division Bench in WA No.575/2020. Relying on said judgment, it is submitted that Administrator is holding substantive charge and not officiating current charge. The Officer who has been appointed as an Administrator by State Government is not subordinate employee who has for the time being given charge of a higher post, therefore, Administrator is competent to pass order under Section 67 (1) of Wakf Act, 1995. Further reliance is placed on Section 99 (2) (b) of Wakf Act, 1995 where it has been laid down that all powers and duties which are to be performed under the provision of Wakf Act, 1995 by Board shall during the period of supersession be exercised and performed by person or persons as the State Government may direct. In view of aforesaid submission, counsel for respondents No.2 and 3 made a prayer for vacating of interim order. It is further submitted that petitioner has an alternative and efficacious remedy to prefer an appeal under Section 67 of Wakf Act, 1995 against the impugned order which is further revisable before High Court

under Section 83 (9) of Wakf Act, 1995.

Learned counsel appearing for petitioner submitted that petitioner does not have any alternative remedy against the impugned order. It is further submitted that though petitioner has a remedy of appeal under Section 67 (4) of the Wakf Act, 1995 but Tribunal does not have power to suspend the operation of order made by Wakf Board pending such appeal. In view of same, it is submitted that petitioner has no other remedy for suspension of order, therefore, writ petition filed by petitioner is maintainable. It is submitted that in WP No.26197/2021 order dated

08.12.2021, this Court has issued notice despite availability of alternative remedy on the ground that Tribunal has no power of suspension. Further in said order reliance has been placed on order dated 03.08.2021 passed in WP No.13524/2021. It is further submitted by counsel for petitioner that impugned order has not been passed by Chief Executive Officer or Administrator but same has been signed by some other person, therefore, order is without jurisdiction. In view of same, he made a prayer for dismissal of application for vacating stay.

Heard the counsel for the parties.

On perusal of order dated 03.08.2021 passed in WP No.13524/2021, it has not been held that despite availability of alternative remedy of filing an appeal under Section 67 (4) of Wakf Act, 1995 aggrieved person may prefer writ petition before this Court as Tribunal does not have power to suspend the operation of order in appeal.

Petitioner has an alternative remedy to prefer an appeal against impugned order before Tribunal under Section 67 (4) of the Act, 1995. Proviso to Section 67 (4) of the Act, 1995 provides that Tribunal shall have no power to suspend operation of order made by Board pending such appeal. There is a specific bar on Appellate Court to suspend the order passed by Board. It is established law that acts which cannot be done directly cannot be permitted to be done indirectly. Since there is a specific bar on Appellate Court to suspend operation of order passed by Board, therefore, writ Court cannot act indirectly to suspend the order passed by Board on face of specific statutory bar under Section 67 (4) of the Wakf Act, 1995, unless same is violation of fundamental right, per se illegal or

without jurisdiction.

Issue regarding jurisdiction and competence of Administrator to supersede committee has already been decided by Coordinate Bench of this Court in WP No.4435/2021 vide order dated 20.09.2021. In view of settled position of law, there is no strength in submission of petitioner that Administrator cannot pass order under Section 67 (1) of the Act, 1995 for supersession of Committee. Petitioner has argued that order has not been passed by Chief Executive Officer but has been passed by Clerk. Said ground has not been pleaded in the writ petition neither any affidavit has been filed before Court in support of said ground. Respondents had no opportunity to traverse the said ground which has been raised orally by the counsel for the petitioner during the course of arguments, therefore, said ground is not taken into consideration.

Considering the aforesaid facts and circumstances of the case, IA No.3712/2022 application for vacating interim stay is allowed and stay granted vide order dated 10.01.2022, is vacated.

Petitioner is having alternative and efficacious alternate remedy, therefore, writ petition is dismissed with liberty to petitioner to avail alternative remedy available to him under Section 67 (4) of Wakf Act, 1995.

(VISHAL DHAGAT) JUDGE shabana Digitally signed by SHABANA ANSARI Date: 2022.03.26 16:59:24 +05'30'