Court No. - 2 Case :- WRIT - C No. - 1998 of 2010 Petitioner :- Sharaft Ullah Khan Respondent :- State Of U.P. & Others Petitioner Counsel :- Shamim Ahmad,M.A. Qadeer Respondent Counsel :- C.S.C.,M.A. Siddiqui Hon'ble Ashok Bhushan,J.
Hon’ble Virendra Singh,J.
Sri M.M.D. Agarwal has put in appearance on behalf of respondents No.6 and
7. Sri Rahul Sripat has appeared on behalf of respondent No.4. Sri M.A.
Siddiqui has appeared on behalf of respondents No.2 and 3.
Issue notice to respondents No.5, 8, 9 and 10. Steps be taken within three
days. The respondents may file counter affidavit within three weeks.
M.A. Qadeer, learned counsel for the petitioner contends that a notice was
issued to the petitioner under Section 64 of the Wakf Act, 1995 for removal of
the petitioner who is working as Mutwalli of the wakf. He submits that
petitioner has submitted a reply and a Member of U.P. Sunni Central Waqf
Board has passed an order on 26th October, 2009 although taking a view that
case of removal is made out but instead of removal he appointed a six
member committee including the petitioner as president of the committee. Sri
Qadeer submits that removal under Section 64(3) of the Wakf Act, 1995 can
be made only by 2/3rd majority of the Board and the proceedings, which have
been initiated under Section 64, have not culminated to its logical end. A
committee has been appointed whereas there was no occasion to appoint a
committee since question of appointment of committee shall arise only when
there is a vacancy.
Sri M.M.D. Agarwal submits that under Section 83 of the Wakf Act, 1995 the
petitioner has remedy before the Tribunal against the impugned order, hence
the writ petition cannot be entertained.
We have considered the submissions of learned counsel for the parties and
perused the record.
There is no dispute that under Section 83 of the Wakf Act, 1995 statutory
remedy is provided against any order passed by the Wakf Board or any
member of the Wakf Board but in the present case the submission of Sri
Qadeer is that order impugned is without jurisdiction and is beyond the power
given under Section 64 of the Wakf Act, 1995. He submits that one member
can not pass order of removal nor the removal order has been passed and there
being no vacancy in the office of Mutwalli, the committee could not have
been appointed.
Prima facie we are satisfied that order passed by single member of the Board
is beyond the provisions of Section 64 of the Wakf Act, 1995. The Apex
Court in 1998(8) S.C.C. 1; Wirlpool Corporation vs. Registrar of Trade
Marks, Mumbai and others has laid down that there are some exceptions to
the normal rule of not entertaining a writ petition where alternate remedy is
available and one of the exception laid down is when the order passed is
without jurisdiction. Learned counsel for the petitioner submits that persons
who have been made member of the Committee have been acting against the
interest of the Wakf Board and the allegations of the petitioner to this effect
have also been noted in the impugned order.
After having heard the learned counsel for the parties, we are satisfied that
petitioner has made out a prima facie case for grant of interim relief.
Let counter affidavit be filed by the respondents.
List thereafter.
In the meantime, operation of the orders dated 26th October, 2009 and 4th
February, 2009 (Annexures 67 and 54 respectively to the writ petition) shall
remain stayed.
Order Date :- 2.2.2010
Rakesh