Madhya Pradesh High Court
Shakil Ahmed vs M.P. State Waqf Board on 17 April, 2017
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W P Nos. 6544/2016 and 133/2017
17/04/2017
Parties through their counsel.
Regard being had to the similitude in the
controversy involved in the present cases, the writ
petitions were analogously heard and by a common order,
they are being disposed of by this Court. Facts of Writ
Petition No. 6544/2016 are narrated hereunder.
The petitioner before this Court has filed this
present writ petition being aggrieved by the order dated
23/8/2016 and 24/8/2016 passed by the Chairman, Wakf
Board. The main ground raised in the Writ Petition is that
the Chairman does not have the power to pass such an
order.
Shri D. S. Panwar, learned counsel for the
respondent No.4 has drawn the attention of this Court
towards a judgment delivered by Principal Seat in the case of Abdul Karim Vs. M. P. State Waqf Board & Others passed in Writ Petition No.15401/2016 and the order is dated 23/03/2017. The order passed by the Principal Seat in paragraph No.9 to 20 reads as under:-
"9. Section 27 confers delegation of power of the Waqf Board, which is being reproduced as under:-
''27. Delegation of powers by Board - The board may, by a general or special order in writing, delegate to the Chairperson, any other member, the Chief Executive Officer or any other officer or servant of the Board or any area committee, subject to such conditions and limitations
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as may be specified in the said order, such of its powers and duties under this Act, as it may deem necessary, except the powers and functions of the Board mentioned under clauses
(e), (d), (g), (j) of sub-section (2) of Section 32 and Section 110 of the Waqf Act.'' On perusal, it is apparent that the Board by a general or special order may delegate its power to the chairperson or any other member of the Board subject to such condition and limitation so specified except the power and function of the Board mentioned under clauses (e), (d),
(g), (j) of sub-section (2) of Section 32 and Section 110 of the Waqf Act. Section 32 specifies the powers and functions of the Board.
However, for the purpose of the cases at hand, clause (g) is relevant whereby appointment and removal of Mutawallis are also power and function of the Board.
10. On creation of a Waqf and after constitution of the Board as per Section 13 of the Waqf Act, if the number of the Waqf is two or more, it would be known as Auqaf and its registration is required. Section 41 of the Waqf Act confers the power to the Waqf Board to direct a Mutawalli to apply 10 for registration of a Waqf or to supply any information regarding a waqf or may by itself cause the waqf to be registered or may at any time amend the register of Auqaf. In case the Board is of the opinion that the management of Auqaf is to be changed after its registration, it be duly notified or after retirement or removal of Mutawalli and on appointment of incoming Mutawalli, it be also notified by the Board. Thereafter, the powers have been conferred to the Board to exercise all the functions as specified under the Waqf Act over and above to the Mutawalli and in case there remains failure, the penalties have also been specified as per Section 63 of the Waqf Act and the Board is having the power to fill up the office of the Mutawalli of a Waqf if no one is appointed under the deed of the Waqf or in case the right of any person to act as Mutawalli is disputed, the Board may appoint any person to act as Mutawalli for such period and on such conditions as it may think fit. The procedure for removal of Mutawalli has also been specified in Section 64 of the Waqf Act. As per Section 65 of the Waqf Act, if the suitable person is not available for appointment as a Mutawalli of a waqf, or where the Board is satisfied, for reasons to be recorded by it in writing, that the filing up of the vacancy in the office of a Mutawalli is prejudicial to the interests of the waqf, the Board may, by notification in the Official Gazette, assume direct management of the waqf for such period or periods, not exceeding five years in the aggregate, as may be specified in the notification. However, it is apparent that after removal of Mutawalli as specified in Section 64, the management of Auqaf may be taken by the Board as per Section 65 and on assumption of the management, it becomes a function of the Board and such power can be exercised by them.
11. Section 67 of the Waqf Act gives the power of supervision and supersession of a Committee of the Management by which whenever the supervision or management of a waqf is vested in any Committee appointed by the Waqf then notwithstanding anything contained in this Act, such Committee shall continue to function until it is superseded by the Board or expiry of its term as may be specified by
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the Waqf whichever is earlier. Sub-section (2) of Section 67 of the Waqf Act starts with non obstante clause and it says that notwithstanding anything contained in this Act and in the deed of the waqf, the Board if it is satisfied, for reasons to be recorded in writing that a Committee, referred to in sub-section (1) is not functioning properly and and satisfactorily, or that the waqf is being mismanaged and that in the interest of its proper management, it is expedient and necessary to appoint a Committee, therefore, an order of superseding the earlier Committee and direction of the Waqf insofar as it relates to the constitution of the Committee may be ordered.
12. In view of the foregoing, the Board may appoint a Committee of management after supersession of a Committee appointed by a Waqf or on expiry of the terms as specified by the Waqf. In addition looking to the overriding provisions under the Act if function of the Committee was not found proper, satisfactory, to the interest of the Waqf or it is being mismanaged, it may be superseded affording an opportunity of hearing meaning thereby the power of proviso of sub- section (2) only attracts when the function of the Committee appointed by the Waqf was not found proper satisfactory mismanaging the Waqf or if it is necessary to do otherwise the Board may exercise the power as per Section 67(1), therefore, the appointment of Mutawalli or appointment of Managing Committee are two different connotations as revealed from the scheme of the Act, which find support from the language of Section 68 of the Act, by which it would be the duty of a Mutawalli or Committee to deliver possession of the records to the newly appointed Mutawalli or the Committee otherwise the action as specified in sub-section (2) of Section Section 68 of the Waqf Act may be taken.
13. On perusal of the scheme of the Waqf Act, first of all it is to be seen that after bringing the amendment in Section 27 of the Waqf Act, the power of the Board delegated to the Chairman of Board for appointment of Managing Committee vide resolution dated 8.9.2007 modified on 11.2.2008, puts any check on the appointment of a Committee by the Chairman and the power as exercised by him is not conferred under the Waqf Act.
14. Indeed it is true that as per Section 3(i) of the Waqf Act, which defines Mutawalli, include a Committee save as otherwise provided under the Act. Thus, looking to Section 64 after removal of Mutawalli, the Board under Section 65 may resume the management of the Waqf by way of notification for time being, and Section 67 of the Waqf Act confers the power of supersession of Management Committee. In the facts of all these cases, it is not in dispute, prior to passing the order impugned, the earlier Management Committee was in force, therefore, it can safely be observed that supervision or management of a Waqf in question in the individual writ petition were vested in the Board and which was being discharged by a Committee appointed by the Board and now by supersession of the order of earlier Committee, the Board under sub Section (2) of Section 67 of the Waqf Act exercised the power to appoint the Management Committee after supersession of the earlier Committee. The power of the Board regarding supersession of Management Committee has been conferred to the Chairman vide resolution dated 8.9.2007, which was modified on
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11.2.2008. On perusal of Section 27 power of a Waqf Board may be delegated to the chairperson or any other member of the Board or to the Chief Executive Officer or any other officer or servant of any areaCommittee subject to such condition and limitation as may be specified in the order except the power and function of the Board mentioned in Clauses (e), (d), (g), (j) of sub-section (2) of Section 32 of the Waqf Act. So far as the present cases are concerned, Clause (g) of sub-section (2) of Section 32 of the Waqf Act relates to appointment and removal of Mutawallis has been pressed upon interalia contending that supersession of the earlier Committee would amounting to appointment and removal of Mutawalli, which is the power and the function of the Board, which cannot be directed by Chairman under the said resolution.
15. As discussed hereinabove, it is not a case of appointment or removal of a Mutawalli but it is a case of supersession of the earlier Management Committee and to appoint a new Management Committee under sub-section (2) of Section 67 of the Waqf Act, therefore, delegation of power except for appointment and removal of a Mutawalli is not restrained by Section 27 of the Waqf Act to discharge the functions of the Board by a person delegated such powers. As per resolution dated 8.9.2007, the powers of appointment of a Committee were conferred to the Chairman of the Board. It was found that by such conferral of power of work of the Chairman was having a wide amplitude, therefore, vide resolution dated 11.2.2008, it was decided that a Waqf whose earning is upto one lakh within one year, the power of supersession of Management Committee would be with the Chief Executive Officer and if the earning of a Waqf is more than one lakh then such power would continue with the Chairman as conferred on him vide resolution of the Board dated 8.9.2007. However, it is apparent that it is a case of supersession of a Management Committee and appointment of a new Committee to which the power has been specified under Section 67 of the Waqf Act.
16. As discussed hereinabove, it is not a case of removal of a Mutawalli appointed by a waqf or removal of a Committee appointed by a Waqf but it is a case of supersession of the Management Committee appointed by the Waqf Board by the order impugned. Therefore, if the issue of removal of a Mutawalli is not involved and on supersession of the earlier Management Committee, new Committee has been constituted by the Chairman, it cannot be understood that the power exercised by the Chairman for appointment of a Management Committee is contrary to spirit of the Waqf Act. It is explained here that Section 27 of the Waqf Act puts a check to the limited extent conferring a power on the Board, which cannot be delegated to the Chief Executive Officer or the Chairman i.e with respect to appointment or removal of a Mutawalli. Once it is concluded that it is not a case of removal of Mutawalli, but it is a case of appointment of a Management Committee then the said embargo would not attract and the argument as advanced by the learned counsel for the petitioners is of no substance. Therefore, it is concluded that the Chairman has rightly exercised the power of supersession of the earlier Committee appointing a new Management Committee in exercise of the power under Section 67 of the Waqf Act by passing the order impugned, which is within his competence.
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17. Now reverting to the issue of not organizing the meeting of the Waqf Board for appointment of Mutawalli and transaction of the business as per the Regulation of 1964 is concerned, it is seen that some interim order was passed in Writ Petition No.11610/2016 filed by the petitioner of PIL and the said writ petition is still pending. Learned counsel for the petitioners submit and clarify that the meeting of the Waqf Board was to organize at Jabalpur without having any resolution of the Board However, in the said case, stay was granted, which would operate only to hold a meeting at Jabalpur. On the other hand, learned counsel for the respondent No.1/Waqf Board contends that in the said writ petition, four persons gave consent for organizing the meeting at Jabalpur, therefore, the meeting was proposed to be organized at Jabalpur.
18. After hearing on the said issue, in view of the submission made by both the counsel in this regard it is suffice to observe that the litigation, which is pending in W.P.11610/2016, is only with respect to organizing a meeting at Jabalpur wherein stay was granted, therefore, such stay would not operate to organize a meeting of the Waqf Board as per Section 17 of the Waqf Act and as per the Regulation of 1964. It is suffice to observe here that as per regulation of 1964 as far as possible the meetings of the Waqf Board ought to be convened once in a month. However, it expected from the Waqf Board to organize meetings as per spirit of Section 17 of the Waqf Act and the Regulation framed by the State Government to discharge its function.
19. So far as the imposition of the condition in Clause No.2 of the order impugned as well as the endorsement made in the context of Section 68 of the Waqf Act is concerned, looking to the condition and the endorsement in the footnote it reveals that action was proposed as per Section 68 of the Waqf Act after elapse of one month. In such circumstances, if the Chairman has issued an instruction for delivery of the charge within a period of fifteen days by way of caution, subject to action after one month, it would not be inconsistent with the provisions of Section 68 of the Waqf Act particularly when this Court has upheld the validity of the order impugned passed by the Chairman having competence to appoint the Management Committee after supersession of the earlier Committee. In my considered opinion, the imposition of the aforesaid two conditions also do not warrant interference in these writ petitions.
20. In view of the foregoing discussion and considering the spirit of provision of the Waqf Act, it is concluded that the order impugned has rightly been passed by the Chairman in view of delegation of the power for appointment of the Management Committee under Section 67 of the Waqf Act, which is within the competence of Chairman, however, it do not suffer from any illegality or lack of jurisdiction, therefore, the relief prayed for quashment of the order impugned is declined. It is, however, observed that the Waqf Board ought to convene its meeting as per the spirit of Section 17 of the Waqf Act and the Regulation of 1964."
In light of the aforesaid judgment as the Chairman is competent to pass the impugned order and the ground
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raised in the present petition is that the Chairman is not competent to pass impugned order, no case for interference is made out.
Accordingly, the admission is declined. A copy of this order be kept in W.P.No. 133/2017.
Certified Copy as per rules.
(S. C. SHARMA) JUDGE KR