Md. Nasim Ansari vs The State Of Bihar
2023 Latest Caselaw 3820 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.22110 of 2019
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Md. Nasim Ansari, son Late Md. Yaqub, resident of Mohalla Chawk Shikarpur, P.S.- Chawk, Patna City and District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar, through Principal Secretary, Minority Social Welfare Department, Bihar, Patna.

2. The District Magistrate, Patna.

3. Sub-Divisional Officer, Patna City, Patna.

4. Bihar State Sunni Wakf Board through its Chief Executive Officer, 34, Haj Bhawan 2nd Floor Ali Imam Path (Harding Road), Patna- 800001.

5. The Chairman, the Bihar State Sunni Wakf Board, 34, Haj Bhawan, Ali Imam Path (Harding Road), Patna- 800001.

6. The Chief Executive Officer, the Bihar State Sunni Wakf Board, 34, Haj Bhawan, Ali Imam Path, (Harding Road), Patna- 800001.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Mohammed Abu Haidar, Advocate For the Respondent/s : Mr. Pankaj Kumar Singh, AC to GA- 9 For the Waqf Board : Mr. Md. Helal Ahmad, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 18-08-2023

Heard Md. Abu Haider, learned counsel appearing on

behalf of the petitioner and Md. Helal Ahmad, learned counsel

for the Waqf Board. The State is represented by Mr. Pankaj

Kumar Singh, learned AC to GA-9.

2. The petitioner by invoking the extraordinary

jurisdiction of this Court under Article 226 of the Constitution

of India seeks quashing of the order as contained in Memo no.

2206 dated 22.07.2019 (Annexure-1), issued under the signature

of the respondent Chief Executive Officer, Bihar State Sunni Patna High Court CWJC No.22110 of 2019 dt.18-08-2023

Waqf Board, whereby the respondent Sub-Divisional Officer has

been appointed as Administrator and further to quash the order

as contained in Memo no. 2821 dated 28.08.2019 (Annexure-2)

issued under the signature of the same respondent whereby the

Sub-Divisional Officer, Patna City has been directed to provide

the financial Budget of the year 2018-19 after cancelling the

demand notice no. 2259 dated 23.07.2019.

3. The short facts, which led to the filing of the

present writ application is that the petitioner, who happens to be

the then Secretary of the Managing Committee, on being

aggrieved by the order passed by the respondent Waqf Board

disqualifying the petitioner's Management Committee at the fag

end of his terms of the office, preferred Waqf Appeal No. 10 of

2014 before the Bihar Waqf Tribunal, Patna (hereinafter referred

to as 'the Waqf Tribunal'). However, while the aforesaid appeal

was kept pending, on account of non-functioning of the said

Tribunal, in the meanwhile, another order came to be passed by

the respondent Waqf Board directing the District Magistrate and

Senior Superintendent of Police, Patna to take steps for handing

over the key of the Waqf Board (Data Nooruddin Shah Waqf

Estate No. 1427).

4. It is submitted that apart from the order being Patna High Court CWJC No.22110 of 2019 dt.18-08-2023

illegal and without jurisdiction, the same was passed behind the

back of the petitioner without adhering to the principles of

natural justice. He next submits that subsequently the Waqf

Tribunal after hearing the parties and taking into consideration

the submissions made on behalf of the petitioner vide its order

dated 06.07.2017 allowed the Waqf Appeal No. 10 of 2014.

5. Despite the aforesaid order of the Waqf Tribunal,

the respondent Waqf Board, passed another order constituting

the new Managing Committee vide Resolution No. 13 dated

03.05.2018 and Memo No. 1452 dated 28.05.2018, thus the

petitioner left with no option, but to challenge the aforenoted

order, filed further appeal, being Waqf Appeal No. 18 of 2018

before the Waqf Tribunal. The learned Waqf Tribunal after

having found that the Waqf Board by making a new Managing

Committee has superseded the earlier Committee of which the

petitioner happens to be the Secretary, without giving

opportunity of being heard as prescribed under the law, set aside

the order as contained in Resolution No. 13 dated 03.05.2018

passed by the Bihar State Sunni Waqf Board and Memo No.

1452 dated 28.05.2018 issued by the Chef Executive Officer of

the Waqf Board. While setting aside the aforesaid order, the

Waqf Tribunal has also observed that the action of the Board is Patna High Court CWJC No.22110 of 2019 dt.18-08-2023

highly deplorable, as the earlier order of the Tribunal has not

been followed in its true letter and spirit.

6. It is next submitted that despite the repeated orders

passed by the Waqf Tribunal, the respondent Waqf Board in

complete disregard again passed the impugned order appointing

the respondent Sub-Divisional Officer as an Administrator of

the Waqf Estate No. 1427, which is wholly illegal and without

jurisdiction, apart from being in violation of the principles of

natural justice.

7. During the pendency of the present writ

application, a supplementary affidavit has also been filed on

behalf of the petitioner and averments have been made therein

that the Waqf Board has further appointed a Caretaker and

requested the Sub-Divisional Officer, Patna City to hand over

the charge of Waqf Estate No. 1427 to the newly Caretaker.

8. Per contra, learned counsel for the respondent Waqf

Board while refuting the aforesaid contention has primarily

submitted that the present writ application is, at all, not

maintainable in view of the efficacious alternative remedy of

appeal, as provided under Section 83(2) of the Waqf Act, 1995

and further under Section 65(2) of the Act, there is a provision

of revision against the order of the Waqf Tribunal. He also Patna High Court CWJC No.22110 of 2019 dt.18-08-2023

drawn the attention of this Court to the provisions as prescribed

under Section 67(4) of the Act that any order made by the Board

under Sub-section (2) thereof shall be final. Provided that any

person aggrieved by the order made under Sub-section (2) may,

within sixty days from the date of the order, appeal to the

Tribunal.

9. So far the merit of the case is concerned, he further

submits that the petitioner's Managing Committee was granted

approval by the Chairman of the Waqf Board only for a period

of three years. However, even after expiry of the said period, no

step has ever been taken by the petitioner for further extension

of the period of his Committee nor the charge was handed over

to the Waqf Board, although it was the duty of the petitioner to

do so, but he failed to discharge his statutory obligation.

10. He lastly submits that the arrangement has been

made only for a stop gap and no final decision with regard to the

constitution of the Managing Committee has been taken.

11. Considering the submissions made on behalf of

the parties, prima facie, it is evident and well settled in law that

the existence of alternative remedy cannot be treated as absolute

bar to entertain writ petition, so as to amount to denudation of

the power of the High Court under Articles 226/227 of the Patna High Court CWJC No.22110 of 2019 dt.18-08-2023

Constitution of India, especially when the order is wholly

without jurisdiction or there is violation of the fundamental

rights or when the order impugned is in complete disregard to

the principles of natural justice.

12. This Court has also gone through the order

impugned passed by the Waqf Board, which, prima facie,

demonstrates that before passing such order, the petitioner has

neither been heard nor provided any opportunity of hearing. A

query has been made by this Court to the learned counsel, who

appears on behalf of the Waqf Board, as to whether the

petitioner has been provided any opportunity of hearing before

passing the impugned order, he fairly submits that since it is an

interim arrangement, therefore, the petitioner was not required

to be heard, as that was not final in nature.

13. Needless to observe that any order, which is

prejudicial to the right and entitlement to a person, must be

followed by the principles of natural justice and moreover,

despite the repeated order passed by the learned Waqf Tribunal

that before making any new Managing Committee or any

arrangement, the opportunity of being heard must be given to

the petitioner, which has not at all been followed. The Tribunal

has also condemned such action of the Waqf Board.

Patna High Court CWJC No.22110 of 2019 dt.18-08-2023

14. Considering the facts that before passing the

impugned orders, which is quite prejudicial to the right and

interest, the petitioner has not been provided any opportunity of

hearing nor he has been noticed, this Court has left with no

option, but to set aside the impugned orders as contained in

Memo no. 2206 dated 22.07.2019 (Annexure-1), as also the

order as contained in Memo no. 2821 dated 28.08.2019

(Annexure-2) and other consequential order. The matter is

remitted to the Waqf Board with a direction to issue fresh notice

to the petitioner and allow him sufficient time to place his case

and after providing an opportunity of hearing to all the stake

holders, pass a reasoned and speaking order.

15. The aforesaid exercise must be completed by the

Waqf Board within a period of eight weeks from the date of

receipt/production of a copy of this order.

16. Accordingly, the present writ application stands

disposed of.

(Harish Kumar, J) uday/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          21.08.2023
Transmission Date       NA