Court No. - 9
Case :- CIVIL REVISION No. - 169 of 2018 Revisionist :- Gauhar Nabi @ Taj Opposite Party :- U.P. Sunni Central Waqf Board And 3 Others Counsel for Revisionist :- Ajay Kumar Singh,Ashish Kumar Singh Counsel for Opposite Party :- Punit Kumar Gupta,Kunal Ravi Singh,Manjari Singh
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the revisionist and Shri Punit Kumar Gupta for the Sunni Central Waqf Board as also Shri Kunal Ravi Singh for the opposite party nos.3 and 4.
The revision is directed against the order dated 23.08.2018 passed by the Waqf Tribunal in Waqf Appeal No.9 of 2018, which is directed against an order removing the revisionist from the post of Mutawalli.
In this Waqf Appeal, an application for interim relief being Application 6-C has been rejected by the order impugned. The revisionist is therefore, directed against the order refusing to grant interim protection to the revisionist during the pendency of this appeal under sub-section 4 of Section 64.
The contention of counsel for the revisionist is that there is material available with him in the form of information received under Right to Information Act to show that on the date, the order for removing the revisionist on the post of mutawalli was passed, the Board consisted of 9 members.
It is settled legal position that an order for removal has to be passed by a 2/3rd majority of the Board. The order of the revisionists' removal had been passed by five members only. It is, therefore, not by 2/3 majority. Under the circumstances, the application for interim relief should not have been rejected by the Waqf Tribunal. The order therefore, is vitiated.
Shri Punit Kumar Gupta and Shri Kunal Ravi Singh, who appear for the opposite parties submit that no material in this regard was brought on record before the Waqf Tribunal and therefore, the application for interim relief has been rightly rejected.
I have considered the submissions made by counsel for the parties and perused the record.
At the very outset, it would be relevant to note that one of the primary grounds of challenge to the order removing the revisionist from the post of Mutawalli is that it has not been passed by a 2/3rd majority of the Board, which alone is authorized to remove a mutawalli.
It is also not in issue that the appeal filed against the order of removal is pending consideration. It therefore, stands to logic that any evidence that may be in the possession of the revisionist will have to be filed to substantiate his case. Since, the order impugned has been passed at the initial stage prior to the evidence of the parties having been led, it may not be appropriate to deny the revisionist relief merely on the plea that no evidence regarding the actual constitution of the Board and the number of its members was not on record, when the interim application was rejected.
In my considered opinion and in the interest of justice, the order impugned is liable to be set aside and the matter deserves to be remitted back for a fresh consideration taking into account an evidence that may be filed by the revisionist demonstrating the actual constitution of the Board on the date, the order of his removal was passed.
It is, therefore, provided that the revisionist shall along with a certified copy of the order annexe thereto,the entire evidence relied upon in this regard and file the same before the Waqf Tribunal within a period of 10 days from today.
In case, the material is filed within the time specified above, the Waqf Tribunal shall afford opportunity to the opposite parties to file evidence in rebuttal, within a period of two weeks thereafter and decide afresh, the application for interim relief by a reasoned and speaking order.
It would however also be open for the Waqf Tribunal to decide the appeal itself finally, if the same can be so decided, on the basis of the evidence of the parties.
Subject to the above, the revision is allowed. The order dated 23.08.2018 is set aside and the matter is remitted back to the Waqf Tribunal to pass a fresh order in the light of the observations/ directions contained herein-above.
Order Date :- 29.1.2019 RKM Digitally signed by ANJANI KUMAR MISHRA Date: 2019.01.30 10:09:11 IST Reason: Document Owner Location: High Court of Judicature at Allahabad