Jyotirmay Bhattacharya, J. - (1.) THE petitioners were the members of the Managing Committee of Delanipur Mosque and Madarasa Committee which was superseded by the Wakf Board. THE petitioners have filed this writ petition challenging the order of supersession of the said committee passed by the Wakf Board. THEy have also challenged the legality of constitution of the present Wakf Board which passed the impugned order of supersession of the said committee. THE said order of supersession was notified in the newspaper on 2nd June, 2010 by the Lt. Governor, A and N Islands.
(2.) THE petitioners complained that reasonable opportunity of hearing was not given to them before superseding the Managing Committee of the said Wakf though Section 67(2) of the said Act, contemplates that such committee cannot be superseded without giving reasonable opportunity of hearing to them. Be that as it may, this Court will have to consider as to how far the petitioners can challenge the propriety of the said order in the writ jurisdiction of this Court, in view of Section 67(4) of the said Act. Sub-section (4) of Section 67 of the said Act provides that any order made by the Board under Sub-section (2) of the said Act shall be final provided that any person aggrieved by the order made under sub-section (2) may, within sixty days from the date of the order, appeal to the Tribunal. THE said provision thus makes it clear that the order of supersession passed by the Board under Section 67(2) of the said Act is final subject to the decision of the Tribunal in appeal. Since the statute itself provides for a statutory appeal against such an order of supersession of the committee by the Board, an aggrieved party, in my view, ordinarily cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India for challenging the order of supersession without availing of this relief by way of appeal under the statute. However, there is an exception to this ordinary rule, as rightly pointed out by Mrs. Nag, learned advocate appearing for the petitioners who submitted that when an order of supersession of the committee is passed by the Board without affording reasonable opportunity of hearing to the members of the committee, availability of alternative remedy by way of appeal will not stand as a bar in maintaining the writ petition in view of the decision of the Hon"ble Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 Supreme Court Cases 1. It is rightly pointed out by Mrs. Nag that alternative remedy would not operate as a bar in almost three contingencies i.e. (1) where the writ petitioners seek enforcement of any of the fundamental rights, (2) where there is violation of principle of natural justice, (3) where the order or the proceedings are wholly without jurisdiction or the vires of an act is challenged. Thus if the petitioners succeed in establishing that this order of supersession was passed without giving reasonable opportunity of hearing to the petitioners, then of course, they can maintain the writ petition despite a statutory appeal is provided under the Act. Let me now consider as to whether a reasonable opportunity of hearing was given to the petitioners before passing the impugned order of supersession. A show cause notice was issued by the Chief Executive Officer of A and N Islands Wakf Board on 31st March, 2010 whereby the members of the superseded committee were called upon to submit their reply to the said show cause notice within 30 days from the date of receipt of the said notice. Number of irregularities allegedly committed by the said committee were mentioned in the said show cause notice and reply was sought for with regard to those irregularities from the members of the said committee. In response to the said show cause notice, the members of the said Delanipur Mosque and Madarasa committee submitted their reply on 29th April, 2010. In the said reply, the petitioners practically challenged the legality and validity of the constitution of the Wakf Board in A and N Islands. Not a single allegation which was referred to in the show cause notice against the said committee, was dealt with by the petitioners in their reply. They simply stated in their reply that those allegations are absolutely false and baseless. Instead of dealing with those allegations appropriately, they reserved their right to reply to the contents of the said notice point to point, once the same is issued by validly constituted Board.
(3.) SINCE the reply was not exhaustive, convincing and satisfactory, the Board decided to give a hearing to the President and Secretary of the said Board so that the dispute can be resolved amicably. The petitioners state that since they were called upon to participate in the hearing for resolving the dispute amicably, they were under the impression that the enquiry proceeding initiated on the basis of the said show cause notice was practically abandoned by the concerned authority and as such they did not address the Board on the allegations made against them in the said show cause notice, in the meeting held before the Board. This is absolutely a lame excuse. This Court finds that though an opportunity of hearing was given to the petitioners to defend themselves in the said proceeding, but they failed to avail of such opportunity for the reasons best known to them. If the reply to the show cause notice is considered minutely, then this Court does not feel any hesitation to hold that the charges levelled against them in the show cause notice were not even effectively denied by them in their reply. Such reply was submitted by the petitioners before they were invited to participate in the hearing for amicable settlement. According to the petitioners, they got confused after receipt of the said notice of hearing. It automatically follows that there was no confusion prior to receipt of the said notice of hearing. As such, they could have very well dealt with the allegations levelled against them in the show cause notice. They did not do so. In fact, they avoided to do so, only to prolong the said proceeding so that they can continue for an unknown duration. The excuse which was shown for not dealing with those allegations, does not appear to me as justified, as they were required to submit their reply to the authority who issued the show cause notice. i.e. the Chief Executive Officer of the Board. This shows that they did not have any valid defence against the allegations levelled against them. As such, instead of dealing with those allegations, they preferred to bank upon some technical objection regarding the defect in the constitution of the Board, but ultimately they failed to establish such contention before the Board. The members of the said committee simply challenged the legality of the constitution of the Wakf Board in A and N Islands in their reply to the said show cause notice. Fact remains that the members of the said committee participated in the hearing before the Board.;