1. The petitioners have assailed the decision of the Regional Level Committee, constituted under G.O. dated 19.12.2000, recognising the election of the Committee of Management of Muslim Qudrat Inter College, Seohara, Bijnor (for short ''the Institution') dated 6.1.2014, whereby, the Committee headed by Shamim Ahmad Chaudhary, advocate as President and Wakeel Ahmad as Manager, has been recognized.
2. The Institution is duly recognized under the provisions of Uttar Pradesh Intermediate Education Act, 1921(for short ''the Act') and is governed by the approved Scheme of Administration framed under section 16-A of the Act. It is a minority institution receiving grant-in-aid from the Government and the provision of Uttar Pradesh High Schools & Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 are applicable to it. The term of the Committee of Management (for short "College Committee")under the approved Scheme of Administration is three years. The last elections were held on 1.11.2009. As the term of the College Committee was coming to an end, the District Inspector of Schools, Bijnor, by letter dated 23.11.2012 required the management to forthwith hold the elections for constitution of a new committee. In compliance thereof, the manager vide its letter dated 26.12.2012 circulated the agenda for holding the election meeting on 30.1.2013. It appears that on 29.1.2013, Sri Zameel Ahmad, Library Assistant, of the Institution died, on account of which, the manager Sri Munir Vishal deferred the election meeting fixed for 30.1.2013 and asked the Principal to inform all the members. Still, three members, namely, S/Sri Wakeel Ahmad, Shamim Ahmad Chaudhary and Zaqiur Rahman assembled on 30.1.2013 at the scheduled venue. They claim to have elected Shamim Ahmad Chaudhari as president, Wakeel Ahmad as Manager-cum-Secretary and Zakiur Rahman as treasurer. The remaining three members of the Waqf Committee namely, Munir Vishal, Prof. Iqtedar Husain Siddiqui and Muizur Rahman Siddiqui were made members of the College Committee. These elections were submitted for approval before the District Inspector of Schools, Bijnor, who vide its letter dated 15.2.2013, forwarded the same to the Regional Joint Director of Education, XII Region, Moradabad for necessary action. Sri Munir Vishal, Dr. Javed Raseed Siddiqui, Sri Wakeel Ahmad Thekedar, Sri Masood Akhtar and Sri Ahmad Rasheed filed their objections against the elections. The Regional Level Committee vide impugned order dated 6.1.2014, recognised the elections and directed for attesting the signatures of manager Sri Wakeel Ahmad. It came to the conclusion that under the approved scheme of administration, the election meeting fixed for 30.1.2013 could not have been postponed or deferred by the Manager without the permission of the president. Consequently, the meeting held on 30.1.2013 was a valid meeting. The elections of 2009 were held from amongst nine members, out of whom three have died, thus leaving behind six members. By order dated 15.7.2011, the Waqf Board had accorded approval to Waqf Committee comprising of ten members by including four new persons, but on receipt of complaints, the order dated 15.7.2011 was stayed. As a result, only six persons remained valid members of the Waqf Committee. In view of clause 9(4) of the scheme of administration, wherein quorum is 1/3, it would be two members out of total six members. In the election meeting, three members were present, thus, quorum was complete. Further, one member Sri Moizur-Rehman Ahmad has sent letter accepting the election proceedings to be correct and thus, out of six members, four have admitted the elections, accordingly, the same are recognised. The objections filed by the petitioners and other persons were rejected.
3. Sri Prabhakar Awasthi, learned counsel for the petitioners challenged the impugned order on the following grounds :-
(a) Waqf committee was notified by the Waqf Board by office memo dated 15.7.2011 comprising of 10 persons. The aforesaid order was stayed on 28.3.2012, with regard to which, office memorandum was issued on 30.3.2012. On the date elections were held, the stay order was continuing, thus, there was no valid waqf committee in existence; consequently, election of College Committee is illegal.
(b) Sri Wakeel Ahmad who has been supposedly elected as manager-cum-secretary was inducted as member for the first time on 15.7.2011 by office memorandum issued by Waqf Board. Since the same was stayed, thus, election of Wakeel Ahmad is, on the face of it, illegal. Further, the quorum for the meeting was not complete.
(c) Regional Level Committee under G.O. dated 19.12.2000 comprises of Joint Director of Education as Chairman, Regional Dy. Director of Education and District Inspector of Schools as members. However, in the meeting in which the impugned decision was taken, the Joint Director of Education was also holding charge of Regional Dy. Director of Education and thus, impugned decision is not by a Committee constituted as per G.O. dated 19.12.2000.
4. Per contra, Sri Mahboob Ahmad, learned counsel appearing on behalf of respondent no.6 contended that the elections were rightly held from out of 6 remaining members of the Waqf Committee. It is contended that Sri Wakeel Ahmad was member of the Waqf Committee since long and it is incorrect that he was inducted for the first time in pursuance of the office memo dated 15.7.2011 by the Waqf Board. He had contested the elections held on 1.11.2009, which were duly approved by the District Inspector of Schools on 30.11.2009. He had been the president in the earlier College Committee and his election in the year 2009 was never challenged, as such, it cannot be contended that his election on 30.1.2013 as manager-cum-secretary is in any manner illegal. It is further contended that the Institution is a minority institution and was established as per the wishes of Waqif Sheikh Qudratullah, who got a waqf deed registered in 1918. It is contended that according to registered waqf deed, the waqf is to be managed by Waqf Committee comprising of nine members. These members form the General Body for electing the College Committee as per clause 6 of the scheme of administration. The procedure for filling up the vacancies in the Waqf Committee is given in the waqf deed and accordingly, these vacancies were filled up from time to time. The erstwhile manager Munir Vishal, by its letter dated 21.12.2009 has informed the Waqf Board for issuing amended order notifying the changes in the Waqf Committee, wherein, name of nine persons comprising the Waqf Committee were duly disclosed. However, formal order was not issued in this regard by the Waqf Board. Thereafter, on 22.5.2010, Sri Masood Usman Khan, the treasurer died. However, on basis of three fake proceedings, in which four new members were alleged inducted to the Waqf Committee, the manager Sri Munir Vishal Siddiqui moved an application before the Waqf Board on 15.7.2011. The Waqf Board on the same date, i.e., 15.7.2011, issued office memorandum recognising the Waqf Committee of 10 members. It is contended that when the said fact came to the knowledge of the president and other members of the waqf committee, they moved application dated 26.3.2012 for recall of exparte order dated 15.7.2011. Thereupon, the Chairman of the Waqf Board by order dated 28.3.2012 stayed the order dated 15.7.2011 and issued notice to both the parties. Sri Sheikh Munir Vishal challenging the order dated 28.3.2012, filed writ petition no. 26672 of 2012 but this court disposed of the writ petition by observing that the entire controversy be decided by the Waqf Board after giving due opportunity of hearing to both the sides. It is submitted that another writ petition no. 10633 of 2013 for quashing the entire proceedings in pursuance of the recall application dated 26.3.2012 was filed. However, this Court dismissed the said writ petition by holding that the petitioner therein, who was appointed as secretary, is seeking inconsistent directions by filing repeated writ petitions and also imposed cost of Rs.10,000/-. Thereafter, member of the U.P. Sunni Central Waqf Board who was authorized for deciding the controversy, after giving full opportunity of hearing to both the sides, vide order dated 24.4.2013, recalled the office memorandum dated 15.7.2011. Aggrieved thereby, Sri Wakeel Ahmad Thekedar submitted an application before the Board for reviewing order dated 24.4.2013. Sri Munir Vishal also filed an application on 21.11.2013 for recalling order dated 24.4.2013. Ultimately, the Chairman of the Board, who had no power of review, by order dated 2.1.2014 allowed the applications for review and set aside the order dated 24.4.2013. Sri Wakeel Ahmad, the erstwhile president and the present manager-cum-secretary of the college committee, has challenged the said order before the Lucknow Bench of this Court in writ petition no. 1421 of 2014. The Court was informed at the time of hearing of the writ petition that therein, the order passed by the Chairman on 2.1.2014 was stayed. Photostat copy of interim order was also produced before this Court and this fact was not disputed by learned counsel for the petitioners. It was, thus, contended that the elections were rightly conducted on 30.1.2013 and since at the relevant time, the Waqf Committee comprised of six persons, as the controversy relating to induction of the other persons was subjudiced, therefore, the quorum was two members and elections held in the presence of three persons were valid and have been rightly recognised.
5. I have considered the rival submissions made by learned counsel for the parties and perused the record.
6. Waqf Sheikh Qudratullah was created by Sheikh Qudratullah, by means of a registered waqf deed in the year 1918. In the waqf deed, which has been brought on record as Annexure CA-1, the Waqif had expressed the desire for establishing an educational institution after purchasing land and constructing building thereon. The waqf deed provided that during his life time, the Waqif will remain as mutwalli and after his demise, his nephew will succeed to him. Under the waqf deed, there is a Managing Committee comprising of nine persons including Waqif himself. The waqf deed specifically provides that the aforesaid committee (hereinafter referred as ''the Waqf Committee') shall be responsible for management, administration, supervision of the waqf properties. It also provides that in case of any vacancy coming into existence, on account of resignation, death or otherwise, the same shall be filled up by the majority opinion of the remaining members.
7. As per the desire of the Waqif, the Institution was established and is now a recognised Institution, under the provisions of U.P. Intermediate Education Act, 1921. It is governed by a duly approved scheme of administration, whereunder, the term of committee of the Institution, is 3 years. Under clause 6 of the approved scheme of administration, the constitution of the committee is provided as under:-
"6. CONSTITUTION OF THE COMMITTEE :- All the members of the Waqf committee shall be the members of the G. Body according to Waqf nama. The members of the committee of management shall be elected by the members of Waqf committee i.e., of the G. Body according to the Waqf nama dated 21.12.1918. The members and the office bearers except ex-officio members will come to the committee of management through the election of the G. Body i.e., of Waqf committee. There are only nine members of the waqf committee. Only six members shall be elected by the Waqf committee. Two teachers and one principal will be included as an ex-officio members. Distt. Magistrate, Bijnor shall be the president of the committee of management.
(i) The committee shall have 10 members in all.
(ii) The following shall be the members of the committee.
A. OFFICE BEARERS :-
(1) President :- D.M. Bijnor ex-officio president according to the instruction laid down in the Waqf nama in 1918.
(2) Manager-cum-secretary (3) Assistant -cum-secretary (4) Treasurer.
B. EX-OFFICIO MEMBERS :-
(1) D.M. Bijnor (2) Principal of the institution.
(3) Two teachers for the term of one year selected by the rotation according to the seniority in the manner prescribed by the regulation of Shiksha Vibhag.
C. ORDINARY MEMBERS :- All the six members other than ex-officio members and the president shall be the life members according to Waqf Nama."
8. The aforesaid clause was amended subsequently and it was duly approved by the Dy. Director of Education, XII Region, Moradabad, by order dated 15.10.1984. As a result of the said amendment, the post of the president of the Institution which was earlier held by District Magistrate, Bijnor, ex-officio, became elected post and the strength of the college committee was reduced from ten to nine members, out of which 6 are to be elected from the General Body, which is the Waqf Committee and the 3 are ex-officio members viz. the principal and 2 teachers by rotation.
9. A perusal of the approved scheme of administration reveals that the General Body for electing the college committee is the Waqf Committee constituted as per provisions of the Waqf deed. The Waqf Committee comprises of nine members. Thus, the General Body for electing the college committee is of nine persons.
10. It is not in dispute that last elections of college committee were held on 1.11.2009. These elections were recognised by District Inspector of Schools, Bijnor by order dated 30.11.2009, in which Wakeel Ahmad was recognised as the president and Munir Vishal as the manager-cum-secretary. There is no material on record to indicate that these elections were subjected to challenge by any person. As such, the contention of the petitioner that Wakeel Ahmad had not been the member of the Waqf Committee, prior to the issuance of office memorandum dated 15.7.2011 is not correct and cannot be accepted.
11. Now I proceed to examine the effect of the stay order dated 28.3.2011, on the office memorandum dated 15.7.2011. Would it have the effect of, keeping the waqf committee in suspended animation, as contended by the petitioner, so that no election of college committee was possible.
12. The waqf in question is a registered waqf under the provisions of the Wakf Act, 1995. Section 32 of the Wakf Act confers power of general superintendence of all waqf, in the Board. It is specifically provided that the Board shall ensure that its property are maintained, controlled and administered for purpose of fulfillment of the object for which waqf was created. In exercise of such powers, it is under obligation to act in conformity with the directions of the Waqif as contained in the waqf deed. According to the waqf deed, the vacancies in the Waqf Committee are to be filled up by the majority opinion of the remaining members. The only requirement u/s. 42 of the Act, 1995 is to intimate changes in the management of a registered waqf due to the death or retirement or removal of the mutwalli. The limited power of the Waqf Board is to verify the genuineness and validity of the particulars furnished to it and thereafter notify such changes.
13. It is the specific case of the contesting respondents that the constitution of the Waqf Committee was duly intimated to the Waqf Board by the manager Munir Vishal, vide letter dated 21.12.2009 (Annexure CA-5). The matter remained pending before the Board and in the meantime, certain vacancies again came into existence. The erstwhile manager Munir Vishal and Sri Azizur Rahman allegedly prepared fake resolutions purportedly passed by Waqf Committee inducting four new members. On basis thereof, Sri Munir Vishal Siddiqui, erstwhile manager moved an application on 15.7.2011, before the Board and on the same date, the Board issued office memo notifying the Waqf committee of 10 members. When these facts came to the knowledge of Wakeel Ahmad, the then president of college committee and member of waqf committee, he alongwith 2 other members of waqf committee filed an application on 26.3.2012 for recall of the exparte order dated 15.7.2011. Thereupon, the Chairman of the Waqf Board, vide letter dated 28.3.2012 stayed the office memo dated 15.7.2011. The effect of such order at best was that 4 new persons who were inducted as members on application made by Munir Vishal Siddiqui dated 15.7.2011 became disputed. However, it will not have the effect of effacing the waqf committee altogether. Infact, neither the waqf deed nor the scheme contemplates a situation where no waqf committee exists. Thus, contention of the petitioners that no waqf committee was in existence on account of stay order dated 28.3.2013 and thus, there was no General Body in existence, which could have held the elections, cannot be accepted.
14. However, the main question for consideration before this Court is whether the election meeting dated 30.1.2013 was duly held and what is the effect of such meeting being adjourned by the then manager on account of death of Library Assistant, Sri Zameel Ahmad; was the quorum complete ? It is not in dispute that under clause 6 of the scheme of administration, the General Body for electing the committee of management of the Institution, is the Waqf Committee, constituted according to waqf-nama dated 21.12.1918. Though the Waqf deed mentions that during the life time of Waqif, the Waqf Committee will comprise of nine members and thereafter eight members, but there appears to be consensus between the parties that the Waqf Committee in existence, even thereafter, always consisted of nine members. Thus, the General Body or the electoral college for electing the college committee comprises of these nine persons, out of whom, six are to be elected as office bearers and members of the college committee. It is noticeable that under the scheme of administration, there is no procedure prescribed as regards the manner in which the meeting of the Waqf Committee is to be held. On the contrary, clause 6 of the scheme of administration, specifically provides that "the members of committee of management shall be elected by the members of the Waqf Committee, i.e., of governing body, according to waqf-nama dated 21.12.1918". Thus, for finding out the manner in which such meeting of the Waqf Committee is to be convened and held, recourse has to be taken to the waqf deed. However, the Regional Level Committee, instead of looking into the waqf deed, referred to various clauses under the scheme of administration for determining the procedure for holding the meeting of the waqf committee. It was observed that the election meeting scheduled for 30.1.2013 could not have been adjourned by the Secretary, without the permission of the President. This is apparently in reference to clause (b) of the powers of the President and clause (j) of the powers of the manager-cum-secretary, under the scheme, which contemplates that the president has power to approve the dates for holding meetings and also the power to postpone or adjourn the meetings. Though, the manager-cum-secretary has the power to call the meeting, it is only with the sanction of the President. Similarly, the Regional Level Committee, in its impugned decision, while determining the quorum had again referred to clause 9(iv) of the Scheme.
15. As observed above, these clauses are in relation to the manner in which meeting of the college committee is to be convened and held. It does not relate to the manner in which the meeting of the Waqf Committee is to be requisitioned or conducted. For the said purpose, recourse has to be taken to the provisions of the waqf deed dated 21.12.1918, as per the mandate of clause 6 of the scheme of administration, whereunder, the college committee is to be elected by the members of waqf committee according to the waqf-nama dated 21.12.1918. It is noteworthy that waqf-nama stipulates that reke mewj dh rtoht dljr jk; ij gksxh N% feEcj vkSj ,d eqroYyh ckfyx cjljdkj dh ekStwnxh bl desVh dk dksje iwjk djus ds fy;s t:jh gksxh Ldwy ds eqrvfYyd tqeyk dok;n otvk djus dk vkSj bfUrtke djus dkA Further there is no provision in the waqf deed that meeting of waqf committee cannot be adjourned without the consent of president. The Regional Level Committee decided the controversy totally oblivious of these provisions. It fell in error of law in referring to provisions under the scheme in relation to the procedure for convening/adjourning the meeting of the college committee and the quorum prescribed for such meeting forgetting that it is the waqf committee which was holding the meeting for electing the College Committee and it was not the meeting of the College Committee. This had resulted in a manifest error of law. Consequently, the impugned order of the Regional Level Committee suffers from patent error of law and cannot be sustained. Since, there is total non-consideration of this aspect of the matter by the Regional Level Committee, therefore, I do not consider it proper to go into these questions for the first time, as it may cause prejudice to one or the other side. The aforesaid exercise, in the first instance, should be carried out by the Regional Level Committee, after due notice and opportunity of hearing to both the sides, to enable them to put-forth their respective claims before it.
16. It is further noticeable that in the election held on 30.1.2013, only three persons were present. The remaining three members of the Waqf Committee though not present, have been shown to be elected as members of the committee of management. The minutes of the election meeting dated 30.1.2013 are on record as Annexure 6. It does not indicate that the name of three remaining members of the Waqf Board, who were absent, namely, Munir Vishal, Prof. Iqtedar Husain Siddiqui and Muizur Rahman were proposed or seconded by any person for being elected as members of the committee. There is also nothing to indicate that they have given their consent for being elected as members. There is no material on record to demonstrate that any member or office bearer can be elected to the college committee, in absentia. In fact, Munir Vishal had filed specific objection before Regional Level Committee, against the alleged elections. Thus, forwarding the name of three remaining persons of the Waqf Committee, describing them as members of the college committee elected on 30.1.2013, was per se illegal. The Regional Level Committee had not at all addressed itself to these aspects nor to the question whether after exclusion of these persons, any valid committee with only three office bearers could come into existence. Consequently, the impugned order of the Regional Level Committee dated 6.1.2014 is hereby quashed and the matter is remitted back to it to decide the entire controversy afresh, in accordance with the observations made hereinabove.
17. In view of the above findings, I do not consider it necessary to delve on the question relating to the validity of the decision of the Regional Level Committee, on account of the fact that Joint Director of Education was holding dual charge.
18. Before parting, this court considers it expedient to provide for the manner in which the college shall be managed, during the period the matter remains pending before Regional Level Committee. It is noteworthy that the present institution is a minority institution and under the scheme of administration, though the term of the college committee is three years, but its office bearers are entitled to continue till the next committee takes over charge. The three officer bearers of the college committee allegedly elected on 30.1.2013 were also the office bearers in the erstwhile committee elected in the year 2009. As such, they are not rank outsiders. Under interim order of this Court dated 11.3.2013, the said committee was permitted to function with the rider that it will not withdraw any amount more than Rs. 2000/- from the account of the Institution, without permission of the District Inspector of Schools and shall also not take any policy decision including the appointment of teachers in the institution. I am of the opinion that till the Regional Level Committee decides the controversy afresh, the same arrangement should continue. Accordingly, this writ petition stands allowed. The impugned order dated 6.1.2014 passed by Regional Level Committee is quashed and it is directed to decide the controversy afresh in accordance with the directions contained hereinabove, after giving full opportunity of hearing to both the sides. The Regional Level Committee shall take such decision within a period of three months from the date of production of certified copy of this order, before it, by any of the parties.
19. In the meantime, the arrangement as made by the order dated 11.3.2014, shall continue. Thus, the committee elected on 30.1.2013 shall be permitted to function, but it will not withdraw any amount more than Rs.2000/- from the account of the Institution, without the permission of the District Inspector of Schools and shall also not take policy decisions, including the appointments in the institution.
20. Writ petition is allowed, subject to the observations/ directions given above.
21. No order as to costs.
(Manoj Kumar Gupta, J.) Order Date :- 22/9/2014 skv