Court No. - 9
Case :- CIVIL REVISION No. - 338 of 2017 Revisionist :- Dr. Kabeer Ahmad And Another Opposite Party :- U.P. Sunni Central Waqf Board And And 7 Others Counsel for Revisionist :- Sharad Malviya Counsel for Opposite Party :- Bakhteyar Yusuf,Bakhteyar Yusuf,Ramakant Tiwari
Hon'ble Anjani Kumar Mishra,J.
Heard Sri Sharad Malviya for the revisionists, Sri Bakhteyar Yusuf for opposite party nos.3, 6 and 8 and Sri Ramakant Tiwari for respondent nos.5 and 7, the opposite party no.4 is dead.
The instant revision under Section 83 (9) of the Waqf Act, 1995 is directed against the order dated 15.11.2017 passed by the Waqf Tribunal, Lucknow in Waqf Appeal No.31 of 2016.
This appeal was filed under Section 67 (2) (4) of the Waqf Act, 1995, challenging the order dated 14.11.2014 passed by the Chairman of the U.P. Sunni Central Waqf Board.
The facts of the case briefly stated are that the Waqf Board on 28.01.1998 constituted a Committee of eight members to manage the affairs of Waqf No.1 a-b, situated in Urdu Bazar, Gorakhpur. This Committee consisted of Dr. Kabeer Ahmad (President), Hazi Barkat (Vice President), Hakim Mohammad Ahmad (Secretary), Maulana Ubaidur Rehman (Deputy Secretary), Hazi Mohammad Refeeq (Treasurer) and Hazi Suhan Ullah, Ahmad Jaigam and Nasiruddin (Members). Out of the above, the Deputy Secretary Maulana Ubaidur Rehman and the Treasurer Hazi Mohammad Rafeeq died.
Thereafter, the Committee on 11.03.2011 passed a resolution whereby the Committee was reconstituted. The President and Secretary were given the status of mere members and two out of the remaining members of the eight member Committee were designated as President and Secretary. This resolution was granted approval on 14.11.2014 by the Secretary of the Sunni Central Waqf Board.
Aggrieved by order, the appeal was filed before the Waqf Tribunal, which has been dismissed by the impugned order dated 15.01.2017, holding that the case was not one of super- cession of the Committee. It was merely an internal arrangement of the Committee and therefore, the provisions contained in Section 64 (2) were not liable to be invoked.
Sri Sharad Malviya appearing for the revisionists assailing the impugned order has submitted that under Section 67 (2) of the Waqf Act, a decision with regard to the Committee is to be taken by the Board. The decision in the case of the revisionists has not been taken by the Board but by the Chairman alone. The order was therefore, wholly without jurisdiction.
The other submission raised by Sri Sharad Malviya is that the super-cession of the Committee in any case could be only on the grounds specified in Section 64 and another ground.
It is also submitted that on the resolution of the Committee being forwarded to the Board, the revisionists had filed their objection, a copy whereof is filed as Annexure-2 to the affidavit filed in support of the revision. This objection has not at all been referred to in the order passed by the Chairman approving the resolution, reconstituting the Committee of Management.
It is lastly contended that the hearing in the matter before the Chairman, was concluded on 21.01.2018 but his approval was granted after more than 13 months on 14.11.2014. Therefore, also the approval is vitiated.
Sri Bakhteyar Yusuf and Sri Ramakant Tiwari appearing for the opposite parties have submitted that the power of the Board can be delegated and in the case in hand, the Chairman had granted approval of the reconstituted Committee in the exercise of such delegated powers. In this regard they have referred to Section 32 (2) (o) and Section 27 of the Waqf Act, 1995.
Additionally, it has been vehemently argued by both the Counsel that subsequently, a fresh Committee has been constituted and this order has been challenged by means of a reference before the Waqf Tribunal which is pending consideration. Therefore, this revision has, all practical purposes, been rendered infructuous and is liable to be dismissed as such.
I have considered the submissions made by counsel for the parties and perused the record.
Section 32 relied upon by counsel for the opposite party, deals with the powers and functions of the Waqf Board and sub- Section 2 (o) thereto reads as follows:
"Generally do all such acts as may be necessary for the control, maintenance and administration of wakfs."
Section 27 which is the other provision relied upon by the counsel of the opposite parties deals with the delegation of it powers by the Board. It provides that the Board may by a general or special order in writing delegate it powers to the Chairman or any other Member, Secretary, Officer or servant of the Board, subject to such conditions and limitations which need to be specified in the delegation order itself.
From a bare perusal of these provisions relied upon by counsel of the opposite parties, it is no true doubt that the Waqf Board has the power to delegate its functions. However, there is no material on record to show that in fact any such delegation had actually been made. In the absence of such material, in my considered opinion, reliance upon the aforementioned two provisions is totally inconclusive. Delegated power can be exercised only once an actual delegation has been made and as noticed above, there is no evidence of any such delegation.
The order impugned dated 15.11.2017 passed by the Waqf Tribunal is on the premise that the order of the Chairman did not amount to removal or super-cession of the Committee of Management which had been appointed by it. For this reason, the provisions contained in Section 64 of the Waqf Act have no application.
The other important facet of the order impugned passed by the Waqf Tribunal is that it holds that reconstitution of the Committee of Management was by a majority of the Committee and this majority decision has only been approved by the Secretary of the Waqf Board. The Waqf Board had not passed any independent order and had merely accepted a majority decision of the Committee.
It is this very same aspect which has been relied upon by counsel appearing for the opposite parties for supporting the impugned order.
This Court, however, is not convinced by the argument. The Committee which had been appointed by the Waqf Board admittedly consisted of eight members. On the date the resolution was passed, reconstituting this Committee, it is admitted that two of the Committee Members, were dead. Therefore, as is also mentioned in the order itself, the resolution was passed by majority consisting of four members.
In my considered opinion, four members, out of Committee consisting of eight members cannot constitute a majority.
At the stage, the contention of counsel for the opposite party, Sri Bakhteyar Yusuf is that by the same resolution the Committee was reconstituted, two new members were also inducted in the Committee who have voted in favour of the resolution.
In my considered opinion, this cannot improve the case of the opposite parties. Any new induction into the Committee of Management necessarily required the approval of the Board. The two Members who voted for the resolution whose induction into the Committee of Management had not been approved by the Board, in any case were not valid members of the Committee and their votes could not and should not have been taken into account either by the Chairman of the Waqf Board or the Waqf Tribunal.
In this regard, it would also be relevant to note that despite pointed queries, none of the counsel appearing in the matter could point out any specific provision either under the Act or the Rules framed thereunder, which provide the manner in which a Committee of Management is required to function. Therefore, the functioning of such a Committee of Management is necessarily to be governed by general principles and this order is being passed on this premise alone.
In view of what has been stated above and since a decision by four members of a Committee consisting of eight Members would not constitute a majority decision, the very basis and foundation of the order impugned, falls. The impugned order therefore, cannot be sustained and is liable to be set aside.
Accordingly, I allow the revision and set aside the impugned order dated 15.11.2017 and remit the matter back to the Waqf Tribunal to pass a fresh order after hearing the parties and in the light of the observations made in the body of the judgement.
Order Date :- 30.1.2019 Jitendra Digitally signed by ANJANI KUMAR MISHRA Date: 2019.02.01 13:54:45 IST Reason: Document Owner Location: High Court of Judicature at Allahabad