K. Abdul Rehman vs The Lieutenant Governor and Others

Debasish Kar Gupta, J.—This appeal is directed against the judgment dated March14, 2011 delivered in W.P. No. 1090 of 2010. By virtue of the impugned judgment the above writ application was dismissed.

In the writ petition under reference, the writ Petitioner /Appellant challenged the notification dated June 02, 2010 the writ Petitioner/Appellant claimed to be the President, Delanipur Mosque and Madarasa Committee, Delanipur, Port Blair. By virtue of the above notification, the Respondent No. 1 appointed the member of the Wakf Board.

We have heard the learned Counsels appearing for the respective parties and we have also considered the fact and circumstances of the case, the impugned judgment is also taken into consideration by us.

The question of validity of appointment of the members of the Walk Board has already been decided by this Court by a judgment delivered today in the matter of Delanipur Mosque and Madarasa Committee, Delanipur and Ors. v. The Lieutenant Governor, A&N Islands, Port Blair MAT No. 018 of 2011, and the relevant portions of the above judgment are quoted below:

With regard to the first ground for challenging the impugned judgment, we find that the learned Single Judge took into consideration the facts of issuing the show cause notice dated March 31, 2010, the reply dated April 29, 2010 submitted by the Appellants, the notice dated July 14, 2010 for giving opportunity of hearing to the Respondents. We further find from the materials on record that the Respondent Board took a decision in its meeting dated July 31, 2010 to give another opportunity to the Appellants to submit written reply with reference to the show cause notice. It appears from the minutes of the above meeting (At page 168 of the application bearing CAN 054 of 2011) that the above decision was communicated verbally to the Appellants. It is also not in dispute that the impugned order was passed long after expiry of the aforesaid period. We do not find any substance in the submission made on behalf of the Appellants that no further opportunity was given to the Appellants on the basis of the above decision because there is no pleading in support of the above claim of the Appellants that the above decision was not verbally informed to the Appellants. In absence of any specific pleading with regard to the above question of fact, no weightage can be given to the submissions made from the Bar. Therefore, we do not find any impropriety in the decision of the learned Single Judge with regard to the above ground.

With regard to the second ground, we find from the materials on record that the show cause notice dated March 31, 2010 was issued on the basis of a resolution adopted in the meeting of the Wakf Board on December 07, 2009, i.e. before the expiry of the term of the erstwhile Board. Subsequently, the decision was implemented by the Respondent No. 3 in accordance with the provisions of Regulation 88 of the A&N Islands Wakf Regulation, 1981 and the above provisions is quoted below:

Responsible for executing decision of Board etc. - the Secretary shall be responsible for execution of decision of the Board and the Committee

Taking into consideration the above fact and the above provision, we do not find any substance in the above ground for challenging the impugned judgment.

Regarding the fulfillment of requisite qualifications by the members of Wakf Board, we find from the relevant records produced before this Court by the official Respondents that the same corroborates the findings of the learned single Judge. We further find that the involvement of Janab Hamid Ali with the activities of Jama Masjid and Police Masjid, Port Blair was taken into consideration. Mohammed Tabraiz was selected under the provisions of Clause (iii) of Sub-section (b) of Section 14 of the Wakf Act, 1995. We do not find any substance in the submission made on behalf of the Appellants that he did not fulfill the eligibility criteria. It is not in dispute that there was no existence of Bar Council of Union Territory of A&N Islands. Therefore, the Respondent authority was left with no other option but to appoint an eminent legal practitioner of the Union Territory of A&N Islands. It was permissible under the provisions of Sub-section (3) of Section 14 of the Wakf Act, 1995. We do not find any substance for the submission made on behalf of the Appellants that the name of the Mutawali was not mentioned in the notification. By virtue of the impugned notification, Mutawallis of Jama Masjid and Police Masjid, Aberdeen Bazar was appointed as member of the Board without mentioning the name. We find substance in the submission made by the learned Government Pleader that the Mutawallis of Jama Masjid and Police Masjid, Aberdeen Bazar were appointed for a period of one year only. While the tenure of the Board was for five years. As a result, there was no scope for mentioning the name of Mutawallis of the Wakf under reference. We also find from the materials on record that Janab K.P. Abdul Samad Faizi passed the Muallimeen HIZB Examination conducted by Samastha Kerala Islam-matha Vidyabhyasa Board. Therefore, we do not find any impropriety in the findings of the learned Single Judge with regard to the fulfillment of eligibility criteria of the above members of the Board. We find that the pay scale of the above member of the Respondent Board was Rs. 15600-39100, while the pay scale of Deputy Secretaries of Union Territory of A&N Islands was Rs. 9300-34800. We do not find any substance in the submission made on behalf of the Appellants that aforesaid information was not before the Respondent No. 1 at the time of appointing the aforesaid person as member of the Respondent Board. Once it is found that the members fulfill the eligibility criteria and the appointment were made in accordance with the provisions of Section 14 of the Wakf Act, 1995, there was no scope to interfere with those appointments in course of judicial review with regard to Mohd. Tabraiz. In view of the above observations, it can not be held that the notification is liable to be set aside on the ground that relevant materials were not placed before the Respondent No. 1 as alleged.

We find no impropriety in the findings of learned Single Judge with regard to the fulfillment of requisite qualification by the members of the Respondent Board.

Regarding the fourth ground, we find that the Respondent No. 3 had discharged his functions in the matter before his appointment was set aside. Subsequent order of a court for setting aside his appointment cannot be valid ground of attack of functions during the valid tenure of holding the office under reference.

With regard to the last ground for challenge, we find that from the notification dated January 12, 1989 that the name of Jama Masjid, Delanipur was included in the above list which was published under the provisions of Sub-Section 2 of Section 5 of the Wakf Act, 1954 read with Rule 4 of A & N Islands Wakf Rules, 1976. Therefore, it doesn''t lie on the mouth of the Appellants that the Masjid under reference was not a Wakf or that the Committee under reference was not appointed by Board. Therefore, there was no bar and/ or impediment on the part of the Respondent Board to initiate action against the Appellants under the provisions of Section 67 read with Section 2 of the Wakf Act, 1995. It is necessary to point out here that though the above list was published on January 12, 1989, the Appellants did not file any application for registration of the Wakf under reference before the Wakf Board in accordance with law. But they are raising objection with regard to the steps taken against them under the provisions of law by the Wakf Board.

On the basis of discussions and observations made hereinabove, we do not find any impropriety in the impugned judgment and the appeal is dismissed. There will be no order as to costs.

Therefore, there is no scope to interfere with the above question once again in this appeal.

This appeal is further dismissed.

There will be, however, no order as to costs.

Urgent xerox certified copy of this judgment, if applied for, be supplied to the parties on usual undertakings.

Md. Abdul Ghani, J.

I Agree.