JUDGMENT
U.P. Singh, J.
1. The Bihar State Sunni Waqf Board and its Chairman (petitioners I and 2) have challenged the legality and validity of the notice of supersession of the Wakf Board purported to have been issued under S. 64 of the Wakf Act, 1954, contained in the letter of the Secretary, Law Department, dated 29-8-1990. By way of amendment petition they have further challenged the validity of the two notifications contained in Annexures 18 and 19 whereby the Board has been superseded on 5-11-1990 and with effect from the said date, the Law Secretary, respondent No. 3, has been appointed as the Special Officer of the Waqf Board.
2. The Bihar State Waqf Board thereinafter to be referred as ‘the Board) has been established and incorporated under Section 9 of the Waqf Act. The present Board was constructed by the Government notification dated 27-1-1989 for a term of five years. Petitioner No. 2 was also elected as Chairman for five years by the members of the Board in its meeting dated 9-2-1989. The petitioner No. 2 took charge of the office of the Chairman on 9-2-1989.
3. On account of paucity of fund and non-sanction of funds by the Government, the Board was engaged in setting its House in order when, on 23-7-1990, the Law Secretary levelled several charges against the present Chairman of the Board and required him to furnish explanation to the charges within a period of ten days. The charges, inter alia, read:–
(A) Several complaints have been received about the irregularity committed by the Waqf Board in connection with the ‘Soghra Waqf Estate’. It was alleged that nepotism has been committed in the constitution of the ‘Soghra Waqf Estate Managing Committee’ by appointing a Professor called Mr. Sharfuddin, allgeged to be brother-in-law of the Chairman. It was further alleged that three members of the Managing Committee of the ‘Soghra Waqf Estate’ were brothers-in-taw of another member of the said committee Mr. Hessamul Haque;
(B) In November, 1979, the Managing Committee of the ‘Ta-Tarapur Maszid’ at Bhagalpur had alleged misappropriation of the Waqf property by the Mutwali but no concrete action was taken by the Board;
(C) In violation of the clear directive of the Government that no fresh appointment shall be made, five persons to the posts of Assistant were appointed; and
(D) Development fund provided by the Centre Waqf Council for development of ‘Soghra Waqf Estate’ had been diverted by the Board for meeting its establishment and expenditure.
4. In a detailed explanation furnished by the petitioner No. 2, each one of the charges were refuted having no substance. Petitioner No. 2 categorically stated that he had no living brother-in-law and, therefore, there was no question of appointing his own brother-in-law as a Member of Soghra Waqf Estate of the Managing Committee. He had further explained that no member of the Soghra Managing Committee happened to be the brother-in-law of Sri Hessamul Haque, who was himself a member of the Managing Committee. Therefore, the first charge was baseless.
5. In regard to the second charge, it was pointed out that the District Local Auquaf Committee of Bhagalpur had, in the past, during the tenure of the earlier Boards, sent several letters seeking necessary information’s which were not furnished by the Local Auquaf Committee to the Board. After petitioner No. 2 took over charge as the Chairman of the Board he took steps by writing several letters to the Local Auquaf Committee to obtain information and documents so that the action could be initiated before the Collector.
6. As regards the third charge regarding filling up of certain vacancies of Class III posts in the Board office, it was clearly stated that, in accordance with the circular of the Government envisaging that the services of such persons who were working against vacant sanctioned posts for over 240 days in a year should be regularised, the Board, being the appointing authority, in the interest of the functioning of the Board, decided to regularise the services of three persons who were working on daily wages since 1-2-1986 and 14-5-1987. In so far as the service of Shri Abdul Hasin who was working on daily wages since 1983 and his regularisation is concerned, it did not relate to the period of the Chairmanship of petitioner No. 2. The appointment of the three above named persons who were in no manner irregular or in contravention of the Government directive since it was not a fresh appointment, it was done in the interest of the Board which was absolutely essential for carrying out day to day affairs.
7. The fourth charge relates to the diversion of funds given by the Central Waqf Council. It was false to allege that there was diversion of the fund made during the period of the Chairmanship of petitioner No. 2. A sum of rupees five lakhs given by the Central Waqf Council remained with the Waqf Board and had been kept in the fixed deposit in the Patliputra Co-operative Bank at Patna and against that fixed deposit, the Board had obtained a loan of rupees four lakhs seventy thousand and two hundred for meeting the establishment expenditure of the Board such as for payment of salary to the staff, etc. The Board made it clear that the said loan shall be repaid as soon as the funds are made available to the Board.
8. A detailed explanation dated 7-8-1990 submitted to the Government in response to the charges alleged in the letter dated 23-7-1990 has been annexed marked Annexure 5.
9. Mr. Basudeva Prasad learned counsel appearing for the petitioners contended that without applying its mind to the facts and circumstances as also the explanation detailed in the case letter, mechanically, the Secretary law (Auquaf Department) again issued a notice to petitioner No. 2 purported to be under Section 64 of the Act to again furnish the show cause within seven days as to why the Board it sell be not superseded. The letter dated 29-8-1990 is contained in Annexure 6 in which it was mentioned that the explanation submitted by the Board was found to be unsatisfactory. This led to the calling of an emergent meeting of the Board which was convened by petitioner No. 2 on 1-9-1990 and the entire matter was thoroughly considered and the Board arrived at the conclusion and resolved that the explanation already furnished by petitioner No. 2 was itself wholesome and reflected-the true state of affairs. The Board took serious note of the fact that most of the charges which were levelled for supersession of the present Board had also been the ground for supersession of the earlier Board as well. The Board also considered the appointment of one Shri Ozasr Ahmad, a former auditor of the Board, by the Government to the post of Secretary who had been suspended by the Board. He had been suspended for serious charges of misconduct and moral turpitude. The Board considered that the said unilateral appointment by the Government on a much higher post of Secretary of the Board without consulting the Board was highly improper which was bound to encourage indiscipline and insubordination against the employees of the Board, it, therefore, resolved to press the Government to recall/cancel the order. After giving due consideration to every aspect of the matter, the Board in its considered view resolved that neither the present Chairman nor the present Board had committed any irregularity or any kind pf administrative or financial irregularity and the allegations levelled against the present Board by the Government in its letter dated 29-7-1990 was thoroughly misconceived, misplaced, incorrect and misleading. Therefore, there was no ground for supersession of the Board. The resolution of the Board was communicated to the Government by the Chairman in his letter dated 18-9-1990 which is annexed marked Annexure 7.
10. It has been alleged in the writ petition that soon after the change of the Government, fabrication of charges and the grounds for super session of the Board and removal of the Chairman started on extraneous and political considerations. It has been pointed out that even before the said notice issued by the Law Secretary for supersession of the Board, the Law Secretary had sent a letter to the Chairman enumerating several charges against him which were contained in the letter dated 9-7-1990 (Annexure 8). It has also been pointed out that most of the charges contained in the said letter of the Law Secretary dated 9-7-1990 formed the basis for supersession of the Board on earlier occasions and finding no alternative to remove the Chairman and to supersede the Board, the same baseless charges were levelled.
11. The said Shri Ozasr Ahmad, the erstwhile auditor of the Board, who had been placed under suspension by the order of the Chairman for serious charges of omission and commission including moral turpitude was appointed by the Government as the Secretary of the Board on 23-8-1990. It has already been stated above that on 29-8-1990 just within a week after the appointment of Shri Ozasr Ahmad as the Secretary to the Board, the show cause contained in Annexure6 for supersession under Section 64 of the Act was issued on 29-8-1990. The Government was well aware about the charges against the said Shri Ozasr Ahmad which appears from several correspondences (sic) mentioned in this writ application. But, in spite of all these serious charges and full knowledge about it, he was appointed as Secretary of the Board on 23-9-1990. The said Shri Ozasr, Ahmad was put under suspension and the order of suspension had been served on 24-8-1990, a copy of which had been sent to the Law Department. A complaint petition of Mrs. Shabna Khatoon against Shri Ozasr Ahmad along with his explanation had been communicated to the Law Department. Since Shri Ozasr Ahmad was under suspension facing serious charges, it was considered proper not to allow him to assume the charge of the post of Secretary and in that situation the Chairman himself took over the charge of Secretary to the Board and notice to this effect was circulated and the Government was informed.
In paragraph 45, the petitioners have categorically enumerated the circumstances and instances to show how consistently illegal and unwarranted interference in day to day affairs of the Board have been carried out by the respondents, such as :–
(a) The Secretary, Law Department had directed the Board not to dissolve the Committee of any Waqf when the Government have no authority or jurisdiction in the matter under Ss. 16 and 43(2) of Hie Waqf Act, the power of formation and dissolution of the Committee of any Waqf lies with the Board;
(b) The Law Department again directed the Board to furnish explanation on the representation of one Amiruddin who had been removed from the post of Mutawalli of Waqf No. 915. Without any jurisdiction, the Government raised this matter when an appeal preferred by the said Shri Amiruddin before the Government had already been lost and the writ petition filed against the same also remained unsuccessful. Even the representation filed before the Government for his re-appointment to the post of Mutawalli has been entertasned by the State whereas under Section 46(6) of the Act, a member once removed cannot be re-appointed for a period of five years; and
(c) On 24-8-1990, the Secretary, Law Department, issued another directive to the Board to remove certain members of the Managing Committee of ‘Soghra Waqf Estate’ at Biharsharif and also directed the Board to dissolve the duly nominated Managing Committee. This also was not within the authority or jurisdiction of the Government.
12. On the basis of these facts, it was contended that, on some pretext or the other, baseless allegations were made and undue interference was caused by the respondents in day to day affairs of the Board. In about a period of fifteen years, the Board has been superseded twelve times on one plea or the other and it has not been given adequate and proper opportunity to put its own House in order so as to efficiently manage and administer the functioning of more than 2000 Waqf Estates within the State of Bihar.
13. While this writ petition was pending on 5-11-1990, the Law Department issued a notification superseding the Board. A subsequent notification of the same date was also issued stating that the Law Secretary, Government of Bihar, has been appointed as the Special Officer of the Waqf Board and petitioner No. 2 is required to hand over the charge of the post of Chairman of the Board to respondent No. 3. These two notifications are Annexures 18 and 19 which have been challenged by way of amendment petition,
14. The stand taken in the counter affidavit and as suggested by Advocate General is that providing fund for the Board is at the mercy of the State Government. Creation of fund for the Board is not an obligation upon the State Government, This has been controverted by the petitioners and it has been submitted that the Governments, of all the States have been providing massive grants and aids to the Waqf Boards in respective States except the State of Bihar which has been providing only meagre amounts occasionally. It is asserted by the petitioners that no relation of petitioner No. 2 was appointed to any post of the Board. One Mr. M.Z. Ajazi who is step brother of petitioner No. 2 has been nominated as the Member of the Soghra Waqf Committee which is one amongst 2000 Waqf Estates and such appointments were not contrary to the Waqf Rules. Nomination of any distant relation of a Member to any Waqf Committee would not by itself be illegal and cannot be a ground for supersession of the Board. In paragraphs 7, 8 and 9 of the rejoinder, the allegations made in the counter affidavit reiterating the charges, has again been refuted. It has been categorically stated that no sale or lease of a single inch of any Waqf property has been made by the present Board or petitioner No. 2. In the last 15 years, the Board has been superseded 12 times and during the period of supersession, the affairs of the Board were being managed by the Government and its officers. When the Board remained superseded for about 11/2 years, it was being managed by the Law Secretary. Therefore, the charge of inaction on the part of the petitioners was baseless. The allegation being repeated in the counter affidavit about regularisation of 4 employees by the Board has again been refuted and the stand taken in the writ application has been reiterated that there was no fresh appointment but only a regularisation of four persons who were functioning for long on daily wages and that was done with a view to facilitate the functioning of the Board and was consistent with the orders issued by the Government for such regularisation.
15. The main contention raised in the writ application appears to be that without applying its proper mind to the show cause submitted by the petitioners, whereby each and every charge levelled against them has been categorically denied was not considered and mechanically a notice for supersession was issued and unilateral action of supersession was taken. This assertion has not been categorically denied in the counter affidavit. The statement in paragraph 15 of the counter affidavit is quite evasive and perfunctory. There is no statement whatsoever regarding the mode and manner of enquiry nor is there any disclosure of materials or basis on which the decision for supersession of the Board was arrived at. The statement in the counter affidavit that Mr. Ozasr Ahmad was made the Secretary on the recommendation of petitioner No. 2 has also been denied as wrong and misleading. The true fact is that petitioner No. 2 had been asked by the respondents to furnish the names of four senior employees of the Board, who had, in the past, discharged the functions of the Secretary. Accordingly, the four seniormost employees were named and a list was furnished. The name of Shri Ozasr Ahmad was in the fourth position and petitioner No. 2 had made it clear that Shri Ozasr Ahmad was mostly out of station and did not attend the official work. Therefore, Shri S.S. Haque the seniormost staff was recommended to be considered for the post of Secretary. The allegation of undue interference and supersession of the Board for 12 times in 15 years on one pretext or the other has not been denied at all.
16, It is now relevant to notice the provisions of Section 64 of the Waqf Act which reads:–
“Power to supersede the Board:–(1) If the State Government is of opinion that the Board is unable to perform, or has persistently made default in the performance of the duty imposed on it by or under this Act or has exceeded or abused its powers, the State’ Government may, by notification in the Official Gazette, supersede the Board for such period as may be specified in the notification;
Provided that before issuing a notification under this sub-section, the State Government shall give a reasonable time to the Board to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Board.
(2) Upon the publication of a notification under Sub-section (1) superseding the Board –
(a) All the members of the Board shall as from the date of supersession, vacate their offices as such members;
(b) All the powers and duties which may, by or under the provisions of this Act, be exercised or performed by or on behalf of the Board shall, during the period of supersession, be exercised and performed by such person or persons as the State Government may direct; and
(c) All property vested in the Board shall, during the period of supersession, vest in the State Government.”
17. On a plain reading of the said provision, it would be obvious that the opinion of the State Government to supersede the Board is not a subjective opinion. It has to be based on objective findings and for the reasons to be recorded in writing. The persistent default in the performance of the duty imposed on it cannot be gathered by a solitary instance of any irregularity or illegality. While considering the true scope of Section 64 and expressions used therein such as ‘persistent default’ and ‘excess or abuse of power’, Kerala High Court in the case of Kerala Waqf Board and another v. State of Kerala, AIR 1984 Kerala 57, held (at page 62) : —
“One or two isolated cases of failure to act will not amount to persistent default within the meaning of Section 64. Persistent failure to carry out the directions issued by the Central or State Government under S. 62 or Section 63 will attract the section. Even a single act of disobedience of the direction may, add to certain continuing circumstances, depending upon the gravity of the matter, indicate persistence on the part of the defaulter.
The word “persistently” in Section 64 precedes immediately the words “made default in the performance of the duty imposed on it by or under this Act”. That word must also generally guide the construction of the words “or has exceeded or abused its powers”, as otherwise it would mean that the one single act of excess or abuse of power, however, insignificant or technical can subject the Board to the drastic punishment of supersession. Such intention cannot be reasonably attributed to the legislature. Section 18 empowers the Government to remove the Chairman or any member of the Board in certain circumstances and Section 63 to give certain directions. The legislature would not have intended that, notwithstanding these powers, the Government should ordinarily resort to the drastic remedy of superseding the Board for a single act of excess or abuse of power. To impute reasonable intention to the legislature, as one must necessarily do in construing legislation, one has to understand the expression “persistently” in Section 64 to apply not only to default in the performance of duty, which is an act of omission, but also, except in certain extreme and exceptional cases, (sic) to acts of commission such as excess or abuse of power. A single act of commission in excess or abuse of power, which in consequence and gravity can be equated to inability to perform, or persistent default in the performance of duty, by reason of its continuing impact, may visit upon the Board the extreme penalty of supersession. But this must be an extreme case of flagrant violation of the legal obligation of the Board”.
18. On correct interpretation of Section 64 it has to be held that the opinion has to be based on consideration of the explanations submitted in regard to the charges levelled against it and that must be considered by a reasoned order. The fact of the present case presents a peculiar feature. Each and every allegation levelled against it were categorically repelled and refuted. They were of trivial nature on which no reasonable opinion could have been formed that the Board persistently defaulted in the performance of its duties imposed under the Act, On the other hand, the facts enumerated above would disclose that there was persistent effort on behalf of the respondents and its authorities to interfere with the day to day administration of the Board and it has been brought on record that in a period of 15 years the Boards were superseded 12 limes. It has also been demonstrated that the same charges, more or less, were levelled for claming supersession. The Board had no adequate and proper opportunity to put its own house in order. No sooner the present Chairman had taken over the assignment, the notice to show cause was issued within four months on the allegations which have been shown to be palpably baseless. Even now the charges have not been established by any cogent evidence. No document in support of the allegation has been brought on record on behalf of the respondents. It has also been satisfactorily demonstrated that no sooner Mr. Ozasr Ahmad was appointed as the Secretary to the Board just within a week thereafter a notice for supersession of the Board was issued. Mr. Ozasr Ahmad was suspended by the Board on the ground of misconduct and moral turpitude. Information to this effect was in full knowledge of the respondents. Even then, ignoring the suggestion of the Board he was appointed on a false pretext that he was one of the four persons recommended by the Board itself. This has been refuted by the Board in its reply. The four persons in the list were named according to seniority and a clear indication had been given therein regarding the allegations made against Shri Ozasr Ahmad and, therefore, a suggestion had been given that some other person be appointed. It has, therefore, been alleged that the show cause notice to supersede the Board was influenced by political considerations and was based on extraneous considerations. It may be pointed out that such statutory authorities must have a free hand in performing its day to day public duty and undue frequent interference on some false pretext or the other will not be conducive to the interest of the people or the Waqf. I find that the show cause in question contained in Annexures 18 and 19 are based on no reason. Neither any reason has been so assigned nor any evidence or material has been disclosed justifying such action. Supersession of statutory body is a serious matter. It is governed by the statute and the provisions contained therein must be strictly followed. Section 64 of the Waqf Act does not give a blanket power to supersede the Board as and when the respondents and its authorities desired to do so and for any reason whatsoever. In the case of Star Enterprises v. City and Industrial Development Corporation of Maharashtra Ltd., (1990) 3 SCC 280, it was held:–
“In recent times, judicial review of administrative action has become expensive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process.”
19. In the facts and circumstances of this case, I have reason to hold that the order of supersession contained in Annexures 18 and 19 and the show cause notice contained in Annexure 6 were based on extraneous considerations and were passed arbitrarily with oblique motive.
20. In the result, the notifications contained in Annexures 18 and 19 as also the notice contained in Annexure 6 are quashed and this application is allowed. There shall, however, be no order as to cost.
Binod Kumar Roy, J.
21. I agree.