JAYASHREE TIWARI,J. - (1.) PRESENT writ petition has been filed by the petitioners Committee of Management, Waqf Dargah Ahmad Shah Gulab Shah, Bijnor & another against State of U.P. and others for issuance of writ, order or direction in the nature of certiorari quashing the impugned order dated 5.11.2009 passed by respondent No. 3 and also a writ of mandamus directing the respondents not to interfere in the functioning of the petitioners relating to the management affairs of waqf Dargah Ahmad Shah Gulab Shah, Bijnor.
(2.) BRIEF facts as annunciated in the petition are as follows : Waqf Dargah Ahmad Shah Qulab Shah (Waqf No. 85 Bijnor), Kiratpur, District Bijnor was created in 1991 and registered with U.P. Sunni Central Board, Lucknow as Waqf Alal-Kher (Public Waqf). Waqf Board appointed Committee of Management for managing the affairs and the property of the Waqf from time to time and the duration for such committee was one year. The Committee of Management petitioner was appointed by the Waqf Board for 2006-2007 and 200/-2008 and the petitioners have been managing the affairs of the property of the disputed waqf and there was no complaint whatever regarding its functioning and management. Then the Waqf Board appointed respondent No. 4 for managing the aforesaid affairs for a period one year. The members of the aforesaid committee headed by respondent No. 4 mismanaged and misappropriated the funds and waqf property and several complaints were made against respondent No. 4 and the aforesaid committee. On expiry of the aforesaid term of the committee headed by respondent No. 4, the Board received applications from Arshad Chaudhary and Ateeq Ahmad Chaudhary and respondent No. 4 applied for reappointment of the committee of management. On matter being enquired by the Waqf Board the report against respondent No. 4 was given by the Waqf Inspector about the misappropriation of the Waqf property and funds. Hence the application of respondent No. 4 was rejected by the Board as well as applications of Ateeq Ahmad Chaudhary and Arshad Chaudhary were accepted and appointed petitioner No. 2 as Mutwalli vide order dated 5.10.2009. The petitioner in pursuance of aforesaid order of the Waqf Board approached the Additional Survey Waqf Commissioner/Additional District Magistrate, Bijnor for taking over charge of office of Mutwalli in the alleged Waqf. Whereupon the Additional Survey Waqf Commissioner directed the Senior Waqf Inspector, Bijnor to ensure compliance for handing over the charge of Waqf in dispute to the committee of management of the petitioner. Accordingly, in compliance of the said direction the petitioner took over the charge of the office of Mutwalli and since then he was looking after the affairs and management of waqf. Order passed by the Waqf Board was neither challenged by respondent No. 4 nor any other person and hence the aforesaid order became final. However, respondent No. 4 approached respondent No. 3 Chief Executive Officer and moved an application stating therein that order dated 5.10.2009 was not issued by the order of the Chief Executive Officer, therefore the same cannot be held to be effective. The respondent No. 3 without giving an opportunity of hearing to the petitioner issued an order/letter requesting the additional Survey Waqf Commissioner that the order dated 5.10.2009 will remain ineffective till the same is not executed by him. The aforesaid order dated 5.10.2009 passed by respondent No. 3 is absolutely illegal and arbitrary and is liable to be quashed. The respondents have filed counter-affidavit denying the contentions raised in the petition and have further submitted that the duties and powers of the Chief Executive Officer are given in Section 25 of the Waqf Act, 1995 as also the powers of the Chief Executive Officer in regard to the order or resolution of the Board are also given under Section 26 of the Waqf Act. It is further submitted in the counter-affidavit that from the perusal of the aforesaid proviso to Section 26 of the Waqf Act it is essential that the order of waqf Board should be placed before the Chief Executive Officer for its reconsideration. It is further submitted that according to Section 30(2) of the Waqf Act all the copies issued under this Section shall be certified by the Chief Executive Officer of the Board in the manner annunciated under Section 76 of the Evidence Act, 1872. It is further specifically stated that powers under Section 30(3) of the Act confer on the Chief Executive Officer, by Sub Section (2) may be exercised by such other officer or officers of the Board as may either generally or specially be authorised in this behalf by the Board.
(3.) HENCE it is clear that the orders of the Waqf Board shall be certified by the Chief Executive Officer unless any officer or officer of the Board may be authorised by the Board. The Waqf Board has authorised Khalid Umar and Tajdar Alam to issue certified copy of the order of the Waqf Board. The alleged certified copy of the order dated 5.10.2009 passed by the Chairman, U.P. Sunni Central Waqf Board, Lucknow is neither issued by the Chief Executive Officer nor Assistant Secretary nor by the abovementioned officer of the U.P. Sunni Central Waqf Board and hence it cannot be held that the order passed by the Chairman, U.P. Sunni Central Waqf Board dated 5.10.2009 has been duly implemented. It is submitted that from perusal of the provisions of Section 26 of the Waqf Act it is obviously clear that object of the aforesaid sanction is that prior to the implementation of the Waqf Board all orders shall be placed before the Chief Executive Officer and the Chief Executive Officer, if he thinks, may place the same before the Waqf Board for reconsideration. As the order dated 5.10.2009 was not placed before the Chief Executive Officer prior to the issuance of its certified copy, thus it is clear violation of Section 26 of the Waqf Act. It is further submitted that it is only Chief Executive Officer who can issue a certified copy of the order and the Office Memorandum of the Waqf Board and in case, the post of Chief Executive Officer is lying vacant then in that case any other officer authorised by the Board can issue certified copy of the order. Accordingly, the order dated 5.10.2009 passed by the Chairman U.P. Sunni Central Waqf Board has hot been duly executed in consonance with the provisions of law. It is further submitted that according to the Government Order dated 12.12.2002 which is filed as annexure CA-1, only Chief Executive Officer is authorised to execute the order of the Waqf Board and the letter written by the respondent No. 3 has been rightly written and there is no error or illegality in exercising power and the writ is liable to be dismissed.;