Court No. - 40 In Re: Civil Misc. Review Application No. 381485 of 2017 IN
Case :- SPECIAL APPEAL No. - 1970 of 2010
Appellant :- Afzal Ahmad
Respondent :- State of U.P. and Others
Counsel for Appellant :- G.K. Singh,K.C.Kishan Srivastava,Kailash Nath Singh,Rajvendra Singh,V.K. Singh
Counsel for Respondent :- C.S.C.,M.A. Ausaf,Mohammad Ali Ausaf,Yashwant Verma
Hon'ble Manoj Misra,J. Hon'ble Vivek Kumar Birla,J.
1. This review application seeks a review of the judgment and order dated 02.12.2016 passed by a Division Bench comprising Hon'ble Arun Tandon and Vivek Kumar Birla, JJ. in Special Appeal No. 1970 of 2010 connected with Special Appeal No. 22 of 2009. As Hon'ble Arun Tandon, J. has retired, this review application has been nominated to this Bench by order of the then Acting Chief Justice dated 04.08.2021.
2. We have heard Sri H.N. Singh, learned senior counsel, assisted by Sri Mohammad Ali Ausaf, for the review applicant; Sri G.K. Singh, assisted by Sri Arun Kumar Mishra, for the newly impleaded respondent in the review application.
3. To have a clear understanding of the controversy giving rise to this review application, a glimpse at the background facts would be useful. They are as follows:
(a) There is an old Madarsa named Madarsa Qurania, Jama Masjid, Jaunpur, which is run by a society of which registration dates back to the year 1947. The registration of this Society had also been renewed with effect from October 10, 2005;
(b) That in the year 1987, the State Government framed “Uttar Pradesh Ashaskiya Arabi Tatha Farsi Madarson Ki Manyata Evam Sewa Niyamawali” (for short '1987 Rules'). Under these rules it was provided that a Madarsa should have its own building and if the Madarsa is not run from its own building it must construct its own building within five years;
(c) That as the Madarsa was being run from a Mosque i.e. Jama Masjid, the then Committee of Management took a decision to construct its own building at Adampur Akbar, Jaunpur and sought permission to shift the Madarsa from Jama Masjid to Adampur Akbar. When a decision was not taken on the application seeking permission, Writ C No. 363 of 1992 was filed in which an order was passed on 11.01.1993 requiring the Inspector, Arabi Madarsa, Uttar Pradesh to accord permission to run the Madarsa from Adampur Akbar, Jaunpur or show cause by filing a counter- affidavit. Pursuant thereto, on 27.02.1993, the Inspector, Arabi Madarsa granted permission to shift the Madarsa to its own building at Adampur Akbar, Jaunpur. The permission so granted was challenged by one Moonis Khan by filing Writ C No. 17057 of 1993. This petition was not entertained, inter alia, on the ground that the writ petitioner was not the recognised Committee of Management and as such it had no locus to maintain the petition;
(d) That consequent to shifting of the Madarsa to Adampur Akbar dispute arose as to whether the Madarsa is to function from Mosque or from Adampur Akbar and, in furtherance thereof, rival management claims were set up. As a result, the payment of salary of teaching and non- teaching staff got affected. Subsequently, in connection with the dispute, the matter was examined by the State Government, which, after calling for reports from various authorities/officers, by an order dated July 9, 1999, noticed that the Madarsa had already shifted to its own building at Adampur Akbar, Jaunpur and the staff working there are entitled to salary;
(e) That the order dated July 9, 1999 was assailed by one of the staff members, claiming to be working at Madarsa Qurania Jama Masjid, through Writ Petition No. 13092 of 2000 which was dismissed by order dated September 23, 2001 on the ground that teachers and employees of the Madarsa would have no right to maintain the petition in respect of the place from where the Madarsa is to function;
(f) That, later, one Dr. Mumtaz Ahmad, claiming to be Manager of Madarsa Qurania Jama Masjid, filed an application before the Registrar for grant of five years' time to the Madarsa to construct its own building and that permission be accorded to the Madarsa to continue to function from Mosque till construction is made. This application was rejected on the ground that Madarsa Qurania had already shifted to its own building at Adampur Akbar, Jaunpur. However, later, on December 2, 2000, the Registrar passed an order cancelling the earlier order in respect of shifting of Madarsa to Adampur Akbar upon reports that the place at Adampur Akbar is disputed and, thereby, granted five years' time to construct its own building in an undisputed location;
(g) That the order dated December 2, 2000 was challenged in Writ C No. 279 of 2001. However, during the pendency of that petition, the State Government by order dated December 8, 2001 directed the Director, Minority Welfare Officer, Jaunpur to cancel the order dated December 2, 2000. In compliance whereof, the Registrar, by order dated March 22, 2001, rescinded the earlier order dated December 2, 2000;
(h) That thereafter sometimes in the year 2008, the Principal of Madarsa (Review Applicant No.3) submitted a representation to the State Govenment to stop illegal payment of salary to the staff claiming to be working in Madarsa Qurania at Jama Masjid. On this representation, comments were called from the Registrar. The Registrar submitted a report dated September 29, 2009 stating therein that the Society, which established the Madarsa Qurania Jama Masjid, was registered in the year 1947; that the registration of the Society was renewed from time to time; that the then President and Manager of the Committee of Management of the Society submitted an application to the Inspector, Arabi Madarsa, Allahabad for shifting the Madarsa Qurania Jama Masjid to Adampur Akbar on which the Inspector passed the order dated February 27, 1993; that the Registrar, Firms, Society and Chits, Varanasi informed that the registered list of office-bearers and members of the year 2008-09 discloses that the Manager of the Society is one Afzal Ahmad; that the representation submitted by Ansar Ahmad and the Principal is not maintainable as they do not have locus; that since the Madarsa was recognized in the year 1943; the subsequent 1987 Rules would not be applicable; that the decision to shift the Madarsa vests with the Committee constituted under the Rules and, therefore, the Inspector, Arabi Madarsa, Allahabad held no jurisdiction to pass an order for shifting of the Madarsa, hence, the order dated February 27, 1993 passed by the Inspector, Arabi Madarsa for shifting the Madarsa to Adampur Akbar was beyond his jurisdiction;
(i) That on the above report of the Registrar, the State Government by its order dated April 13, 2010 rescinded its earlier order dated July 9, 1999 and directed the Registrar to recall the order dated February 27, 1993;
(j) The Committee of Management of Madarsa Qurania Adampur Akbar, Jaunpur through its Manager Ansar Ahmad and its Principal Abdul Waheed filed Writ C No. 37695 of 2010 for quashing the order dated 13.04.2010 passed by Special Secretary, Government of Uttar Pradesh by which the Registrar, U.P. Madarsa Shiksha Parishad, Lucknow was informed of the decision taken by the Government to cancel its earlier order dated July 9, 1999 and for placing the matter before the Manyata Samiti of the U.P. Madarsa Shiksha Parishad for taking a decision in the light of the decision taken by the Government. In addition to above, the petitioner also sought quashing of the order dated May 12, 2010 passed by the Registrar by which, on the basis of the decision taken by the Manyata Samiti, dated May 10, 2010, permission was given to the Madarsa Qurania to run from its original place in Jama Masjid and, consequently, the decision taken earlier dated February 27, 1993 for shifting of Madarsa Qurania from Jama Masjid to Adampur Akbar was cancelled.
(k) Assailing the orders impugned, in Writ C No. 37695 of 2010 it was urged before the learned Single Judge that the order dated April 13, 2010, which cancels the earlier order dated July 9, 1999, is illegal for the reason that the Madarsa Qurania had formally shifted to Admapur Akbar, pursuant to the permission granted by the Inspector, Arabi Madarsa, U.P. on February 27, 1993; that there was no justification to place the matter before the Manyata Samiti, particularly, when the decision taken to shift the Madarsa had already been implemented and sufficient time had elapsed since its shifting. More so, when 1987 Rules require a Madarsa to function from its own building;
(l) That the prayer made in the writ petition was resisted on the following grounds:-
(i) That the 1987 Rules are not retrospective in nature and would not apply to Madarsas that were recognised much prior to the framing of those rules;
(ii) That even if 1987 rules were to apply, the permission to shift the Madarsa from its existing location at Jama Masjid could have been granted under Rule 18 of 1987 Rules by the Registrar, Arabic and Persian Examination, U.P. on the basis of recommendation made by Manyata Samiti and not by the Inspector, Arabi Madarsa and since there was no recommendation of the Manyata Samiti, the order dated February 27, 1993 was illegal and without jurisdiction and was, therefore, rightly cancelled; and
(iii) That a duly elected Committee of Management of the Madarsa had passed a resolution on January 24, 1999 that the Madarsa should be run at Jama Masjid and the General Body had also passed a resolution to that effect on March 19, 2000 and such resolution was also passed by the Committee of Management on April 15, 2002. To subvert that, an application was moved for removing the word “Jama Masjid” against the name of the Society so as to replace it by “Adampur Akbar” which was rejected and, therefore, to serve its own purpose, a new Society by the name of Madarsa Qurania Adampur Akbar was got registered on July 15, 2008 and through that Society, the petitioners seek to grab control over the institution set up several decades ago by an already existing Society. It was thus claimed that the petitioners of Writ C No. 37695 of 2010 had no locus and the petition was liable to be dismissed.
4. The learned Single Judge allowed the writ petition, inter-alia, holding that, 1987 Rules would apply to the existing Madarsas also; the decision of the Inspector, Arabi Madarsa had continued to operate for over 17 years and the Madarsa had actually shifted to Adampur Akbar therefore, the Registrar could not have cancelled the permission granted way back on February 27, 1993 only on the ground that the Registrar and not the Inspector was competent to grant permission; it is not necessary to examine as to whether the petitioner-committee of management is validly elected or not; the writ petition cannot be dismissed merely on the ground that the petitioner committee of management is not a validly elected Committee of Management. While allowing the writ petition, the learned Single Judge further observed that its decision will not mean that the court has recognised the petitioner-committee of management as validly elected Committee of Management therefore, it will be for the authorities to adjudicate upon the same.
5. When the order of the learned Single Judge was subjected to challenge in the intra-court appeal, while disposing off the appeal, the Division Bench took into notice the stand of the appellant that the duly recognised Committee of Management of the Madarsa had taken a decision to construct a new building at Gopalpura. From the observations made in the judgment and order dated 02.12.2016, which is under review, it appears that to ascertain whether the lawful management of the institution, entitled to manage the institution, had constructed its own building at Gopalpura, required the District Minority Welfare Officer, Jaunpur to make spot inspection. The District Minority Welfare Officer was also required to inspect the institution allegedly running at Adampur Akbar also. Pursuant thereto, it appears from the observations contained in the judgment dated 02.12.2016, a report was submitted by the District Minority Welfare Officer to the effect that there are 314 students admitted in the Madarsa running at Gopalpura, out of which 237 were present at the time of inspection and that there were sufficient number of rooms for running the Madarsa there. In respect of the institution at Adampur it was noticed that the building was constructed over a Waqf property. There were sufficient number of rooms available for running the Madarsa there but, as against total strength of 241 students, only 109 students were found present at the time of inspection. After considering the report, the Division Bench in its order dated 02.12.2016, observed as follows:-
“The report, in our opinion, clearly suggests that the Madarsa is actually being run from the building, which has been established at Gopalpur, where all the facilities of teaching in various classes including mid-day meal and distribution of free uniform to the students, is being implemented.
The teachers at the institution at Adampur appears to be an effort on the part of the Principal to contest the shifting of the institution at the behest of rival Committee of Management for reasons best known to him.
We are of the opinion that it is within the discretion of the recognized Committee of Management of the Madarsa to construct its own building and to run the institution therefrom in view of the 1987 Niyamawali. The Principal or the teacher of any institution cannot object to such shifting of the institution by the lawful Committee of Management. Even otherwise, if the institution is one and the same, there cannot be parallel classes at two different buildings, nor two persons can claim to be the Principal for the same Madarsa.
In the totality of the circumstances on record and having regard to the fact that the petitioner Committee of Management hopelessly failed to establish before us that it was the lawful Committee of Management duly recognized, we hold that writ petition on its behest was misconceived. The Principal alone is left, who object to the shifting of the institution, in our opinion, he has no right in that regard.”
After making such observations, the appeal was disposed off with certain directions.
6. The judgment and order dated 02.12.2016 passed in Special Appeal was challenged before the Apex Court through Special Leave to Appeal (c) No. 1800 of 2017 which came to be disposed off by order dated 23.10.2017, which is extracted below:-
“Heard Mr. Rohit Sthalekar, learned counsel for the petitioners.
It is submitted by the learned counsel that the High Court has not really applied its mind to the concept of recognized Committee of Management of Madarsa and, therefore, all the directions issued by it are erroneous. On a perusal of the order passed by the High Court, we notice that it has expressed the view that it is within the discretion of the recognized Committee of Management of Madarsa to construct its own building and to run the institution. If the petitioner-Committee of Management has been recognized, needless to say, then the result has to be different.
In view of the aforesaid, we permit the petitioner- Committee of Management to file an application for review before the High Court within four weeks from today. If such an application is filed within the time frame, the same shall be adverted to on its own merits within eight weeks therefrom.
Needless to say, the High Court shall return an appropriate finding with regard to the status of the lawful Committee as that is the fulcrum of the controversy.
With the aforesaid observation and request, the special leave petition stands disposed of.
I.A. Nos. 3 and 4 also stand disposed of.”
7. Pursuant to the liberty given by the Apex Court, the instant review application has been filed.
8. Sri H.N. Singh, learned senior counsel, fairly admitted that pursuant to the order of the Supreme Court, the scope of the review application is limited to examining whether the Committee of Management that instituted the writ petition and that has brought this review application, is a valid Committee of Management to represent Madarsa Qurania. Sri H.N. Singh though made a feeble attempt to canvass that since the Principal of the Madarsa is also one of the writ petitioners, even if the Committee is found not lawful, the petition at the instance of Principal alone would be maintainable. But, upon being confronted with the order of the Supreme Court limiting the scope of review to the extent indicated above, he did not press the point further. More so, because that aspect was already decided against the review applicant while deciding the Special Appeal. Consequently, the learned counsel for the parties are in agreement that if the Committee of Management that instituted the writ petition is not found valid, then the petition, and now the review application, at the behest of that Committee of Management, would have no legs to stand.
9. Before we proceed to examine the merit of the review application within the limited sphere of its scope, it would be appropriate to put on record that there is no dispute in respect of the following facts:
(a) That Madarsa Quarania is an old Madarsa which, according to the records, was granted recognition in 1943 and was run by a Society registered on May 25, 1947 by the name of Madarsa Quarania Jama Masjid, Jaunpur.
(b) The permission to shift the Madarsa from Jama Masjid to Adampur Akbar was sought and granted in the year 1993.
(c) That, much later, an application was made by the Management of this Society to seek time to shift Madarsa from Jama Masjid to Gopalpura and, in that context, after obtaining reports, the earlier permission to shift to Adampur Akbar, granted in the year 1993, was rescinded after noticing that the authority that accorded permission held no jurisdiction. Challenging this order of rescission, writ petition was filed by the review applicants, which came to be allowed by the learned single judge but, on appeal, the order was reversed with certain directions. The order passed in appeal is under review.
10. In that background what we have to determine is whether the writ petitioner was a lawful Committee of Management of the Madarsa in question and as such had locus to maintain the writ petition as well as the current review petition. In this context the respondents in the writ petition had questioned the locus of the review applicants, inter alia, in paragraphs 28, 29 and 30 of the counter affidavit filed in the writ petition as follows:-
“28. That having failed to get the name or address of the society changed one Ansar Ahmad, successor in interest of Mohd. Ayub Khan was left with no other option but to get a new society registered. He, therefore, got a new society registered in the name of Madarsa Qurania Adampur Akbarpur Sadar Jaunpur. The aforesaid society was got registered on 15.07.2008. Photostat copy of the registration certificate of the new society, list of office bearers of the aforesaid society, the order dated 26.07.2008 passed by the District Minority Welfare Officer, Jaunpur attesting the signatures of Ansar Ahmad and the bye-laws of the aforesaid society are collectively filed herewith as Annexure-CA-21.
29. That as found by the authorities concerned and as is the case pleaded by the petitioner himself in the writ petition there is one and only one institution which is in question which was recognized way back in the year 1943. It is also admitted by the petitioner himself that it was being run by a society known as Madarsa Qurania Jama Masjid, Jaunpur. The petitioner, therefore, cannot claim control over the aforesaid institution by setting up a new society. The entire claim of the petitioner based upon this new registration of the society is, therefore, absolutely bogus and frivolous. The petitioner would have therefore no locus standi at all to question the orders impugned in the writ petition. The petitioner no.1 claims itself to be the committee of management of the society which is running the Madarsa. The petitioner no.2 claims himself to be the Secretary/Manager thereof. The petitioner no.3 claims himself to be the Principal of the aforesaid Madarsa. From the facts and circumstances mentioned above, it is, therefore, clear beyond doubt that all the 3 petitioners have got no locus standi at all to maintain the present writ petition. They are neither the validly elected and recognized committee of the society/Madarsa in question nor is the petitioner no.3 its Principal.
30. That the question as to whether an institution would be run at place 'A' or at place 'B' would be decided only by its management and none else. At present the committee of management of which Afzal Ahmad is Secretary/Manager is managing the affairs of the society and institution. It is relevant to point out that election of the committee of management of the society was held on 12.05.2007 in which Afzal Ahmad elected as Secretary/Manager. His signatures as Manager have also been attested by the District Minority Welfare Officer vide order dated 16.07.2008. List of office bearers of the society are being filed continuously as required under Rule 4 of the Societies Registration Act before the Assistant Registrar. Photostat copy of the order dated 16.07.2008 passed by the District Minority Welfare Officer attesting the signatures of Afzal Ahmad as Manager is being annexed herewith and is marked as Annexure CA-22. The deponent is also filing herewith true copy of order dated 15.07.2008 passed by the Assistant Registrar whereby he has accepted the list of office bearers of 2008 & 09 is being annexed herewith and is marked as Annexure CA-23.”
11. The reply to the averments made in paragraphs 28, 29 and 30 of the counter-affidavit is given in paragraphs 32, 33 and 34 of the rejoinder-affidavit filed by the review applicants during the course of writ proceeding. They are extracted below:-
“32. That the contents of paras 20, 21, 22, 23, 24, 25, 26, 27 & 28 of the counter- affidavit are incorrect, misleading and are denied. However, the detail reply has already been submitted in the earlier paragraphs of this affidavit hence repetition is not required. It is further submitted that once in the year 1993, the Madarsa Qurania was shifted in its own building at Adampur Akbar, Jaunpur along with its recognition, grant-in-aid, teaching and non-teaching staff, students as well as its committee of management, nothing remained in the mosque (Jama Masjid) after 30.03.1993. Moreover, after enforcement of Act, 2004, only the committee of management of Madarsa Qurania, Adampur Akbar Jaunpur which is constituted under the provisions of said Act, 2004 and recognized by the department, is responsible for running and administering the affairs of the said institution, therefore the society Madarsa Qurania, Jama Masjid Jaunpur has no relevancy or locus to interfere in the affairs of Madarsa Qurania, Adampur Akbar, Jaunpur. It is further submitted that the constitution of the committee of management as well as recognition of petitioner no.1 & 2 has not been challenged by anyone before any court of law or authority.
33. That the contents of para 29 of counter-affidavit are not admitted as stated and are denied. It is submitted that after enforcement of Act, 2004, only the committee of management of Madarsa Qurania, Adampur Akbar Jaunpur which is constituted under the provisions of said Act, 2004 is recognized by the department, responsible for running and administering the affairs of said institution it is submitted that Madarsa Qurania, Adampur Akbar is run as one Madarsa. So far as the objection with regard to locus to file the present writ petition is concerned, it is submitted that the similar objection was raised by Shri G.K. Singh, learned counsel in Special Appeal No. 22 of 2009 filed by the present petitioners but the Division Bench of this Hon'ble Court has not accepted the said objection and the appeal filed by the present petitioners was admitted and interim order was granted. The petitioners have every right and locus to file and maintain the present writ petition.
34. That the contents of para 30 of the counter-affidavit are absolutely incorrect and are denied. The detailed reply has already been submitted in earlier paragraphs of this affidavit. However, it is further submitted that the no committee of management can be permitted to run the institution on its own whims but it is to be run and administered in accordance with the Niyamawali, 1987 as well as Act, 2004. Once the Niyamawali, 1987 provides that each Madarsa has to have its own building, therefore no committee of management or authority of the department could pass the order to run the Madarsa in the Mosque. So far as the attestation of signature of respondent no.7 is concerned, it is submitted that the District Minority Welfarer Officer, Jaunpur has specifically stated in his letter dated 20.08.2009 (Annexure No. R.A. 6 to this affidavit) that the signature was got attested by concealment of fact.”
12. Notably, neither in the rejoinder affidavit nor any where else there is a denial to the specific stand taken in paragraph 28 of the counter affidavit extracted above that a new society was got constituted in the year 2008 to wrench control of the Madarsa; whereas, the admitted position is that the Madarsa Qurania Jama Masjid was running since last over half a century and its parent society, by the said name, was registered in the year 1947, the registration of which has been renewed in the year 2005. Under these circumstances, when the writ petitioners claim under a society registered in the year 2008 by the name of Madarsa Qurania Adampur Akbarpur, Sadar, Jaunpur, they cannot be accepted as lawful committee of management of Madarsa Qurania Jama Masjid that had established the Madarsa over half a century ago and which continues to exist. We are therefore of the considered view that the observation of the Division Bench in its judgment and order under review that the writ petitioners miserably failed to establish their locus does not suffer from any legal infirmity that way warrant a review. The review petition is therefore dismissed.
Order Date :- 29.10.2021 Sunil Kr Tiwari