[Cites 15, Cited by 0]
Madhya Pradesh High Court
Shia Dawoodi Bohra Jamat vs Madhya Pradesh Waqf Board Bhopal on 4 May, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:34905
1 CR-696-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 4 th OF MAY, 2026
CIVIL REVISION No. 696 of 2024
SHIA DAWOODI BOHRA JAMAT
Versus
MADHYA PRADESH WAQF BOARD BHOPAL AND OTHERS
Appearance:
Shri Shashank Shekhar - Senior Advocate with Shri Samresh Katare -
Advocate for the applicant.
Shri Mukesh Kumar Agrawal - Advocate for the respondents.
ORDER
The present revision has been filed under section 83(9) of Waqf Act,
1995 being aggrieved by the order dated 27.05.2024 passed by the M.P.
State Waqf Tribunal, whereby the Tribunal has dismissed the suit of the
present petitioner.
2. The suit had been filed by the present petitioner seeking the relief of
declaration that the sole trustee of the suit property is Syedana Mufaddal
Saifuddin and the orders dated 17.03.2020 and 28.03.2020 passed by the
Waqf Board in relation to the said property be declared null and
void. Further injunction was sought that the order of deletion of name of
Syedana Mufaddal Saifuddin from the Waqf register be restrained and no
other correction in the Waqf register be carried out to delete the name of said
person. Mandatory injunction was sought against any interference in property
of the trust.
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3. The matter went to trial and the Waqf Tribunal framed as many as
11 issues, out of which issue No.8 was as to competence of Chief Executive
Officer of Waqf Board and issue No.11 was as to the effect of appointment
of Administrator in view of the Notification dated 16.03.2020 issued by the
State Government, whereby the regular Board had been constituted. The
revision has been pressed only on issues No.8 and 11 on the ground that if
the issues No.8 and 11 are decided in favour of the present petitioner, then
the very substratum of the impugned proceedings dated 17.03.2020 and
28.03.2020 shall be wiped off.
4. The learned Senior Counsel for the petitioner has argued that the
Chief Executive Officer of the Board had drawn a note sheet and put up the
said note sheet before the Administrator on which the Administrator had
taken certain decision on 17.03.2020 and thereafter by taking a somersault
different decision was taken on 28.03.2020 and both the decisions were
based upon the proposal of Chief Executive Officer of the Board. It is argued
that the Chief Executive Officer was a usurper to the office as he was a
current charge holder and secondly that the Waqf Board itself had no
administrator either on 17.03.2020 or on 28.03.2020 and the appointment of
Administrator had come to an end on 16.03.2020 itself and therefore, even if
the Chief Executive Officer was authorized to make a proposal to the Board,
then the matter had to be decided by the Board, because there was a
nominated board from 16.03.2020 till 27.03.2020, which are the dates on
which the nominated board had been appointed and then dissolved, but there
cannot be any presumption of restoration of the earlier administrator and the
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decision taken on 17.03.2020 was bad in law, because on that date there was
a Board and on 28.03.2020 though there was no Board as it had been
dissolved on 27.03.2020, but there was no restoration of Administrator and a
new person was appointed as Administrator on 31.03.2020 and from
28.03.2020 till 30.03.2020 there was a vacuum in the Board. Even
otherwise, it was a lock-down period and the decisions of the Government
were being taken at slow speed. In this case, lightening speed was shown as
the office of the Board was got opened in Covid-19 lock-down priod, only so
as to draw the impugned note-sheet on 28.3.2020.
5. The counsel for the respondents has vehemently opposed to the
aforesaid assertions and has stated that the Board might have been
constituted on 16.03.2020, but the constitution was not valid because at the
most two members can be nominated members, but the entire Board which
was constituted on 16.03.2020 was a nominated Board and secondly when on
27.03.2020, the Board had been dissolved then naturally the Administrator
who had been earlier appointed, would get restored and therefore, the
decision taken by the Administrator is fully valid and proper and within his
competence. On these assertions, learned counsel for the respondent has
vehemently supported the impugned order passed by the Waqf Tribunal on
the grounds of competence and authority.
6. Heard.
7. So far as the argument relating to competence of the Chief
Executive Officer of the Waqf Board is concerned in making proposal to the
Board, the issue has already been decided by the Division Bench of this
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Court and it has been held that the action taken by the Chief Executive
Officer, even if he was a current charge holder cannot be invalidated. In
W.A. No.1560 of 2023, the Division Bench has considered the subsequent
appointment of a subsequent Chief Executive Officer and by adopting the de
facto doctrine has held that even if a person's appointment is found to be
defective, but he is not a usurper to the post nor a rank encroacher, but holds
office under the colour of some lawful authority, then the actions taken by
him stand validated.
8. Even otherwise, it has been held by the Hon'ble Supreme Court in
the case of Gopalji Khanna vs Allahabad Bank reported in 1996 (3) SCC 538
that a current charge holder can exercise and discharge all the administrative
powers of the post of which he has been placed in charge. If a person who is
in charge Chief Executive Officer would not discharge any functions, then
there would be utter chaos in the Board. The Hon'ble Supreme Court in the
aforesaid case held as under:-
7. With respect to the second contention, it was submitted by the
learned counsel that the power of review is conferred by
Regulation 18. Only the Chairman and Managing Director are
specified as reviewing authorities. This statutory power, therefore,
can be exercised by the Chairman and Managing Director only as
they are the named authorities under the statutory provision and
cannot be validly delegated to any subordinate authority. Shri
Wadhwa, therefore, could not have validly exercised that power.
There is no substance in this submission. It is really misconceived.
Though the Regulations have been framed in exercise of the
powers conferred by Section 19 of the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970, by the
Board of Directors, they cannot be equated with a statute. What
NEUTRAL CITATION NO. 2026:MPHC-JBP:34905
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the Board of Directors have done by making those Regulations is
to regulate the power of taking disciplinary action against the
employees of the Bank. Moreover, this is not a case where the
power of Chairman or the Managing Director came to be
exercised by a subordinate official as a result of delegation of that
power. Shri Wadhwa while exercising the power of review was
really discharging the functions of Chairman and Managing
Director as he was then placed in charge of those offices and was
therefore entitled to perform all the duties and functions of those
offices. He did not exercise that power on the basis that it was
delegated to him. Therefore, the decisions in Barnard v. National
Dock Labour Board [(1953) 1 All ER 1113 : (1953) 2 WLR 995]
, Krishna Kumar v. Divisional Asstt. Electrical Engineer [(1979) 4
SCC 289 : 1980 SCC (L&S) 1] and Marathwada
University v. Seshrao Balwant Rao Chavan [(1989) 3 SCC 132 :
1989 SCC (L&S) 436] , relied upon by the learned counsel in
support of his contention that statutory power can be exercised by
the named authority only and cannot be further delegated, require
no further consideration. So also, Ramakant Shripad Sinai
Advalpalkar v. Union of India [1991 Supp (2) SCC 733 : 1992
SCC (L&S) 115 : (1992) 19 ATC 85] and State of
Haryana v. S.M. Sharma [1993 Supp (3) SCC 252 : 1993 SCC
(L&S) 1072 : (1993) 25 ATC 594] cited by the learned counsel
have no relevance. The question which arose for consideration in
those cases was whether an officer who substantively holds a
lower post and is asked to discharge the duties of a higher post can
be considered as promoted to that higher post. This Court held that
entrustment of current duties charge of a higher post does not
amount to promotion and in such cases the person continues to
hold his substantive lower post and only discharges the duties of
higher post essentially as a stopgap arrangement.
8. It was next submitted that when a person is entrusted with
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charge of current duties of a higher post, he can exercise only
those powers and perform those functions which are available to
the person holding the higher post under executive orders and not
those which are conferred by statutory provisions. In support of
this submission the learned counsel relied upon the decision of this
Court in Ajaib Singh v. State of Punjab [(1965) 2 SCR 845 : AIR
1965 SC 1619 : (1965) 2 Cri LJ 553] . In that case what had
happened was that the Additional District Magistrate, Amritsar
was invested with powers of a District Magistrate under Section
10(2) of the Code of Criminal Procedure, 1898 and was also put in
charge of the office of the District Magistrate Amritsar, who was
transferred. No order appointing him as a District Magistrate
under Section 10(1) was passed. While in charge of the office of
the District Magistrate, he passed an order of detention under the
Defence of India Act and Rules, 1962. That order was challenged
on the ground that as the Additional District Magistrate was not
appointed as District Magistrate under Section 10(1) he did not
have the power to pass a detention order and, therefore, the order
passed by him was without any authority of law and liable to be
set aside. This Court after considering the relevant provisions of
the Defence of India Act and Rules, 1962 and the drastic nature of
the power and the consequences following from it, observed that
the power of detention could only be exercised by the State
Government or an officer or authority to whom it was delegated
and that the said power could be delegated to an officer or
authority who was not lower in rank than the District Magistrate. It
was then held that even though the Additional District Magistrate
was exercising the powers of the District Magistrate on there
being a vacancy in the office of the District Magistrate, he was
still not the District Magistrate as he was not appointed as such
under Section 10(1) of the Code and therefore, he had no power to
pass the order of detention. Even though invested with the powers
of a District Magistrate he did not become an officer of the rank of
NEUTRAL CITATION NO. 2026:MPHC-JBP:34905
7 CR-696-2024
a District Magistrate. In this case we are not concerned with such
a provision and therefore are not required to consider whether
Executive Director of the Bank when entrusted with the charge of
duties of the offices of Chairman and Managing Director became
an officer of the rank of Chairman and Managing Director.
Moreover the power of the employer to take disciplinary action
against his employee including the power to review an order of
penalty, has to be distinguished from the statutory power to detain
a person. Therefore, on the basis of this decision it cannot be held
that the Executive Director who was merely entrusted with the
charge of duties of the offices of Chairman and Managing
Director could not have exercised the power of reviewing the
order of penalty passed by the disciplinary authority.
xx xx xx
12. After considering the above decisions and Regulations 2(n)
and 18, we are of the opinion that as the Executive Director Shri
Wadhwa was entrusted with the charge of the offices of Chairman
and Managing Director he became entitled to exercise all the
executive powers, perform duties and discharge functions attached
to those offices and, therefore, the order of penalty passed by him
was legal and valid.
9. In view of the above, the conclusion as to issue no.8 does not
require any interference on this Court, which relates to competence and
authority of the Chief Executive Officer in raising the proposal to the Board.
10. Now this Court proceeds to examine the competence and authority
of the Administrator of the Board, which is the subject matter of issue No.11.
11. The Administrator had been appointed on the Board by the State
Government by exercising powers under Section 99 of Waqf Act, which is
as under :-
"99. Power to supersede Board.--(1) If the State Government is
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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 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 1 [auqaf] 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."
12. As per the aforesaid provision Administrator can be appointed for
a maximum period of 6 months in absence of the regular Board. However in
the present case one Shri Nisar Ahmed was appointed Administrator vide
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order dated 19.01.2019 issued by the State Government, which was effective
for 3 months or till constitution of the new Board.
13. In view of Section 99 though the Administrator could not have
continued in absence of the Board for more than 6 months, i.e. after
19.07.2019, but since no challenge was made to the continuation of
Administrator at that point of time, hence by application of de facto doctrine,
it cannot be held by this Court that the functions discharged by Shri Nisar
Ahmed after 19.07.2019 were null and void.
14. However, the issue arises as to the functions discharged by Shri
Nisar Ahmed after 16.03.2020, because on 16.03.2020, rightly or wrongly, a
Board had been nominated by the State Government, which is the same
authority who had nominated the Administrator and the Administrator owed
his existence to the order of the State Government dated 19.01.2019 and the
same State Government, then nominated a Board on 16.03.2019. This order
dated 16.03.2019 was Exhibit P-10 and it was superseded by cancellation
Notification dated 27.03.2020. The cancellation Notification dated
27.03.2020 is as under:-
"म य दे श शासन
पछडा वग तथा अ पसं यक क याण वभाग
म ालय, व लभ भवन, भोपाल 462004
- आदे श-
भोपाल, दनांक 27.3.2020
कमांक एफ 4-4/2013/54-2/पाट फाईल, वभाग के समसं यक अिधसूचना
दनांक 16.3.2020 के ारा व फ अिधिनयम 1995 संशोिधत 2013 क धारा 13 (1)
म द श य एवं धारा 14 म उ ले खत ावधान अनुसार म. व फ बोड के
गठन हे तु 06 सद य क िनयु क गई है । रा य शासन एतद ारा त काल भाव
से क गई िनयु य को िनर त करता है ।
म य दे श के रा यपाल के नाम से
तथा आदे शानुसार
NEUTRAL CITATION NO. 2026:MPHC-JBP:34905
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(अशोक कुमार मालवीय)
अवर सिचव
म य दे श शासन
पछड़ा वग तथा अ पसं यक क याण
वभाग"
15. The State Government has not mentioned in the said order dated
27.03.2020 that the nomination of the Board was null and void ab initio, nor
it has mentioned that the State Government has not issued the order dated
16.03.2020 whereby the Board had been constituted in the Waqf Board, but
the State Government has proceeded to cancel the order dated 16.03.2020.
Therefore, on 17.03.2020 which is the date of first impugned decision by the
Board, there was no existence of Administrator in the Waqf Board and the
note sheet dated 17.03.2020 is utterly devoid of jurisdiction.
16. Now the question would arise as to the second note sheet dated
28.03.2020, because it was argued before this Court that the Administrator
would come into existence again upon dissolution of the Board on
27.03.2020 and upon cancellation of the Board Constitution order dated
16.03.2020.
17. The aforesaid argument cannot be accepted by this Court, because
the State Government had constituted a Board rightly or wrongly on
16.03.2020 and on that date the office of Administrator automatically ceased
to exist and if the State Government was cancelling that order on 27.03.2020,
then the Administrator whose appointment had come to an end on
16.03.2020 was required to be put to life again by passing a specific order,
because the Administrator had existence only till the constitution of the
NEUTRAL CITATION NO. 2026:MPHC-JBP:34905
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Board. The Board was constituted on 16.03.2020 on which date the
Administrator ceased to have existence and if he was to have continued
existence, then there should have been an order of the State Government to
appoint an Administrator, or it could have been mentioned in the order dated
27.03.2020 that the Administrator, who was working up to 16.03.2020 would
continue to discharge the functions, but it is not so.
18. Counsel for the Waqf Board has clearly admitted that on
31.03.2020, the State Government issued a fresh order appointing a fresh
Administrator in the Waqf Board and the said order is in the following
terms:-
"म य दे श शासन
सामा य शासन वभाग,
म ालय
- आदे श-
भोपाल, दनांक 31 माच, 2020
ी सतीश कुमार एस, भ. .से. (2013), मु य कायपालन अिधकार , जला
पंचायत, भोपाल तथा अपर कले टर जला भोपाल को अपने वतमान कत य के
साथ-साथ अ थाई प से आगामी आदे श तक शासक, म य दे श व फ बोड,
भोपाल का भार अित र प से स पा जाता है ।
म य दे श के रा यपाल के नाम से
तथा आदे शानुसार
(इकबाल िसंग बैस)
मु य सिचव"
19. Not only the order dated 27.03.2020 is very clear in not reviving
the office of Administrator, but even there is no endorsement of this order
made to the Administrator so as to infer that by passing the order dated
27.03.2020 whereby the appointment of nominated Board had been
cancelled, the Administrator's office had been put to life again.
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20. Therefore, as on 28.03.2020 there was no Administrator in M.P.
Waqf Board and the Administrator who had been appointed in January 2019,
stood superseded on 16.03.2020. The office of Administrator was again
revived on 31.03.2020. From 16.03.2020 till 27.03.2020, there was a
nominated Board and from 28.3.2020 to 30.03.2020, there was neither any
Board nor any Administrator in the Waqf Board.
21. Therefore, it is to be held that the decision of the Tribunal as to
issue No.11 in holding the Administrator to be competent on 17.03.2020 as
well as on 18.03.2020 is perverse to the material on record and the said
findings deserve to be and are hereby set aside. It is held that the decisions
taken on the note sheet on 17.03.2020 and 28.03.2020 by Administrator of
the Waqf Board are unauthorized decisions taken by a person utterly without
jurisdiction and who even cannot be said to be pretender to the office, but
was a total stranger to the office, because no office of Administrator existed
on both of these dates.
22. As the decisions dated 17.03.2020 and 28.03.2020 have been held
to be without jurisdiction and incompetent, then this Court need not consider
merits of the case, because once the decisions dated 17.03.2020 and
28.03.2020 are passed by the incompetent person, then these decisions will
stand quashed only on that ground.
23 In view of the above, the impugned order passed by the Waqf
Tribunal dated 27.05.2024 is set aside. The decisions taken by the Waqf
Board dated 17.03.2020 and 28.03.2020 are set aside. Liberty is reserved to
the competent authority of the Waqf Board to place the proposal of the Chief
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Executive Officer to the competent authority of the Waqf Board now, and
take a decision on the said proposal after following the principles of natural
justice in accordance with law and take a fresh decision.
24. In the above terms, the revision stands allowed and disposed of.
(VIVEK JAIN)
JUDGE
rj
