Managing Committee @APPELLANT@Hash Abid Hussain

This is a misconceived application complaining of contempt of Court.

By W.P. no. 7761 (W) of 2012 the writ petitioner sought the following as his principal relief:

“(a). a writ in the nature of a writ of Mandamus commanding the respondents, not to give any effect or further effect to the impugned order dated

9.2.2012 issued by the respondent no.2 and further commanding them, specially the respondent nos. 2 and 3 to reconsider the prayer of the petitioners

and thereby grant recognition and/or approval to Moulana Abul Kalam Azad Senior Madrasah as Madhyamik Shiksha Kendra (Sr. Madrasah Type),

Police Station Islampur, District Mushidabad.

(b). a writ in the nature of a writ of Certiorari directing the respondents to certify and transmit to this Hon’ble Court the records of the case

before the Hon’ble Court at the time of hearing of the case or so as to be fixed including the impugned order so that conscionable justice may be

done by quashing the same.â€​

In the writ petition a challenge was made to an order at Annexure P/9. By the said order the claim of the petitioner for approval of the Senior

Madrasah as Madrasha Sikaha Kendra was rejected for the reasons stated therein. By the order dated March 15, 2017 this Court, through a

coordinate Bench, was pleased to pass an order containing, inter alia, the following:

“In compliance thereof hearing had taken place and during the course of hearing it was reflected that the application which had been preferred by

the petitioners’ was never considered and further no show cause notice was issued pointing out the deficiencies, if any, in the establishment of the

madrasah. It has further been reflected that no opportunity of hearing was afforded to the petitioner prior to passing of the order.

On the basis of instructions, learned counsel for the State submits that admittedly no show cause notice was issued pointing out the deficiencies.

As the order has been passed without affording opportunity of hearing as well as without pointing out the deficiencies, if any, the same suffers from

the principles of natural justice and as such the order impugned is hereby set aside and quashed.

The writ petition is, thus, allowed.

I make no order as to costs.

The Registry is directed to supply photostat certified copy of this order to the applicant, if applied for, on urgent basis.â€​

Mr. Mustafa submits that the third last paragraph being ‘the writ petition is, thus, allowed’ should be construed to mean that the prayer (a) of

the writ petition by which a mandamus was sought has been granted.

I am afraid that the context of the order clearly shows that the Hon’ble Court was impressed with the fact that no notice had been issued asking

the writ petitioner to show cause why the application for recognition should not be rejected before rejecting the claim and that the learned advocate for

the State had, before the Hon’ble Court, admitted it. Therefore, His Lordship’s expressed intention was to quash the order on the ground that

it did not subserve the principle of natural justice.

It is true that prayer (a) of the writ petition contained two parts. The first was that no effect was given to be given to Annexure P/9 (the impugned

order dated February 9, 2012) even though I am afraid that a mandamus cannot be used for such a negative command. The second part was a

command for reconsidering the prayer of the petitioner and thereby to grant recognition and/or approval to the Madrasah in question as Madhyamik

Siksha Kendra.

However, this Court, in its wisdom, chose only to quash the order dated February 9, 2012 id. est. allow only part of the prayer and the only way I can

construe the paragraph “the writ petition is, thus, allowedâ€​ is to hold that one out of several reliefs was granted.

This therefore, amounts to rejection of the other parts of the prayer. There is no mandate given by the order for reconsideration of the prayer of the

writ petitioner.

The contempt application is therefore, not maintainable since there is no disobedience of the order of this Court whether wilful or otherwise; it is

nobody’s case that the order dated February 9, 2012 still subsists.

The contempt application is thus, dismissed. There shall be no order as to costs.

However, the very nature of the order passed by this Court requires that a notice to show cause to be issued to the petitioner why his application for

approval, as sought for by him, should not be rejected. This is the natural consequence of the order whose contempt has been complained of. Such

notice to show cause has not yet been issued. Nothing herein shall prevent the writ petitioner for applying afresh seeking that such a notice to show

cause be issued to him and that he be given reasonable opportunity to show cause before his application is finally disposed of - this is because on the

quashing of the order his application referred to as Annexure P/1 to the writ petition has revived.