KOTHARI, J. - (1.) IN this batch of revision petitions filed U/s. 83 (9) of the Wakf Act, 1995 (for short, the 'act'), a short but interesting question arises for consideration by this Court.
(2.) UNDER the provisions of Section 18 of the Act, the Wakf Board may, whenever it considers necessary, establish either generally or for a particular purpose or for any specified area or areas committees for the supervision of wakfs. The constitution, functions and duties and the term of office of such committees shall be determined from time to time by the Board and it shall not be necessary for the members of such committees to be members of the Board. The Wakf Board itself is constituted in accordance with Section 14 of the Act by a notification in the Official Gazette by the State Government and the term of office of the members of the Board shall be five years, vide S. 15 of the Act. The present Board was constituted on 27. 10. . 2005 comprising of 11 members, 6 elected members and 5 nominated by the State Government including the Chairman of the Board. The controversy in the present case arises in relation to wakf property situated in Bharatpur for the administration and management of which a Wakf Committee headed by Janab Haji Islamuddin appointed as Sadar of the said Committee was appointed vide Annexure-3 dated 17. 10. 2003 for a term of three years. Vide Annexure-4 dated 21. 12. 2006 by an order passed by Chief Executive Officer of the Rajasthan Board of Muslim Wakfs, Jaipur, the Board passed an order that on account of expiry of term of specified 5 Committees, the charge of such 5 Committees be handed over to one Shri Rajendra Kumar Sharma, Inspector of the Wakf Board who will take charge of the wakf properties in question and this arrangement would continue till further orders. It was further directed by the said order that if the aforesaid 5 defunct committees do not hand over the charge, such appointed Incharge Shri Rajendra Kumar Sharma can approach the First Class Magistrate, Bharatpur U/s. 68 of the Wakf Act and may also get special audit done U/ss. 46, 47 & 48 of the Act and one Mr. Turabuddin was also appointed as assistant of the said Inspector Shri R. P. Sharma. It may be noted that the term of one of the committees at serial No. 1 had expired on 20. 8. 2002 whereas the term of the remaining 4 committees expired on 17. 12. 2006 and, thus, the aforesaid order Annexure-4 was passed on 21. 12. 2006. Aggrieved by the said order, the present respondents filed appeals before the Wakf Tribunal U/s. 64 (4) read with Section 67 (4) which is constituted U/s. 83 of the Act. The Tribunal allowed the said appeals by a common judgment dated 10. 1. 2007 holding that since the order dated 21. 12. 2006 was passed without complying with the principles of natural justice and without holding any enquiry and without a resolution being passed by 2/3rd majority, the said orders were illegal and, therefore, were liable to be set aside. Being aggrieved by the said order of the Tribunal dated 10. 1. 2007, the present revision petitions have been filed by the Chief Executive Officer, Rajasthan Board of Muslim Wakf, Jaipur; Chairman, Rajasthan Board of Muslim Wakf, Jaipur; and Rajasthan Board of Muslim Wakf U/s. 83 (9) of the Act. Mr. M. C. Taylor, learned counsel appearing for the petitioners submitted that the appeals filed before the Tribunal were not even maintainable because with the expiry of the term of the Committee, it became automatically defunct and non-existent and, therefore, there was no question of any supersession of the Committee in question nor any question of removal of Mutawalli arose U/s. 67 (2) or Section 64 (1) of the Act and, therefore, the appeal itself was incompetent and could not be entertained by the Tribunal constituted under the Act of 1995. He submitted that firstly there was no reason of any grievance to the respondents upon the expiry of term of the Committee and if at all there was some grievance, they could either file civil suit in the competent civil court or could approach the High Court by way of writ petition but the appeal U/s. 83 of the Act was misconceived and, therefore, the impugned order passed by the Tribunal allowing such appeals was itself without jurisdiction and, therefore, the present revision petitions deserve to be allowed. Further making his submissions he urged that the Wakf Board should be permitted to constitute new committees for these wakf properties but since there was a stay order directing the parties to maintain status quo in these revision petitions, the Wakf Board could not do so and the Wakf Board is ready and willing to undertake the exercise for appointment of new committees within a period of four weeks. He submitted that since the committee appointed vide Annexure-3 dated 17. 12. 2003 was not a committee appointed by the Wakf nor the said committee was removed or superseded U/s. 67 (2) of the Act which envisaged a committee which is not functioning properly and satisfactorily or that the Wakf was being mismanaged, the Board may supersede such committee and only if the said order was passed in exercise of powers U/s. 67 (2) of the Act, the question of a show cause notice or enquiry would arise and such orders could be made subject matters of appeal to the Tribunal U/s. 67 (4) of the Act. He further submitted that, therefore, question of invoking Section 67 (5) of the Act which requires the Board when it supersedes any committee under sub- section (2) to constitute a new committee of management simultaneously with the order made by it under sub-section (2), does not arise. On the same analogy, respondent No. 1 Haji Mohd. Islamuddin could not said to be a Mutawalli after expiry of term of the committee on 17. 12. 2006 and, therefore, there was no question of removal of a Mutawalli as far as respondent No. 1 Haji Mohd. Islamuddin was concerned U/s. 64 of the Act in which also an appeal lies only if such removal is on the grounds specified in clause (c) to (i) of sub-section (1) of Section 64 of the Act.
(3.) HE relied upon the judgment of this Court in Shokat Ali Ansari Vs. State of Rajasthan and another [2000 (1) RLR 335] wherein the learned Single Judge of this Court held that where the petitioner was initially nominated by the State Government as a member of Wakf Board and thereafter was elected as Chairman where the term of the Board was upto 2. 1. 1996 and on 1. 1. 1996 new Wakf Act, 1995 came into force, therefore, petitioner submitted his resignation in December, 1995 but by notification dated 2. 1. 1996 petitioner's term was extended with other members of the Board till reconstitution of the Board under the new Act and the petitioner had completed his term of 5 years, instead of reconstituting the Board, the State Government by order dated 12. 1. 1999 appointed respondent No. 2 as the Administrator of the Board, the Court held that it has to be presumed that the term of petitioner and other members was extended till further orders and it is not necessary that till new Board is constituted they should be continued. Therefore, appointment of Administrator till reconstitution of Board was not illegal, though there is no provision under the new Act for appointing Administrator, however, there was no clear-cut provision for not making such appointment and, thus, the writ petition filed by Shokat Ali Ansari was dismissed by the learned Single Judge. The matter was taken in Division Bench by way of D. B. Special Appeal No. 154/99 which was disposed of on 19th May, 1999 by holding as under:- " Though the language of the notification dated 2nd January, 96 Ex. P/1 to the petition is defective in the sense that it speaks of the Board as a whole and not of the Chairman/ Chairperson or individual members as such. Actually, it was not even necessary to issue such an order of extension because under both the Acts the Chairman/ Chairperson and the members could continue in office after their resignation (in this case the expiry of their term) till the new Chairman/ Chairperson and members enter office. We also conclude that there being no provision for appointment of an administrator replacing the entire body of the Board the appointment of Administrator by order dated 12. 1. 99 was illegal and without authority of law. However, looking to the fact that the learned Single Judge has given six months time to reconstitute the Board which would expire on 11. 7. 99 and looking to the fact that the operation of the order passed by the learned Single Judge was not stayed in this appeal as also looking to the fact that the appellant himself had in his letter dated 15. 12. 98 Annexure P/a to the petition to the then State Minister for Wakf, Govt. of Rajasthan, Jaipur had in clear terms stated that beyond 31st March, 99 it would not be possible for him to continue to discharge the functions of the Chairman of the Board. We do not find it just and proper to quash the order appointing the Administrator. Moreover, in the affidavit filed on behalf of the State Govt. on the directions of the Govt. in this appeal it has been stated that the process of Election for the constitution of the Board under Section 14 (2) of the Act of 1995 has already been started and as per the programme the process will be completed before 11. 7. 99 the outer limit given by the learned Single Judge for constitution of the Board. In view of all this, we dispose of this appeal accepting the assurance of the State Govt. that it shall complete the process of reconstitution of the Board up to 11. 7. 99. Needless to add, immediately on the reconstitution of the Board the Administrator shall cease to function. " On the side opposite, three learned counsels made their respective submissions. Mr. S. M. Ali, Mr. Z. A. Naqvi and Mr. Amod Kasliwal and all the learned counsels were heard at length. The common argument which was raised by all the three learned counsels was that in effect and in substance Annexure-4 order dated 21. 12. 2006 amounted to supersession of the committee and removal of Mutawalli though apparently the said order did not say so and it was made to appear as an innocuous order passed upon expiry of term of the committee though in fact it was not so. Learned counsel Mr. S. M. Ali tried to support this submission by referring to reply filed before the Tribunal by the Wakf Board in para 2/8 in which it was stated that the impugned order was issued in the interest of wakf because Collector, Bharatpur had made a report against appellant No. 1 as to defalcation and fraud of Rs. 20 lacs recommending action against appellant No. 1. The immediate response of learned counsel for the Wakf Board to this was that this at best could be said to be motive behind passing of the order Annexure-4 dated 21. 12. 2006 but it was not the foundation thereof and the foundation was the expiry of the term of the committee. The second submission made by the learned counsel for the respondents was that since in effect the impugned order amounted to removal/ supersession of the committee, not only the appeal before the Tribunal was competent and maintainable but the same was also rightly allowed by the Tribunal because apparently there was no compliance with the principles of natural justice as no notice prior to passing of the impugned order was given to the respondents nor any enquiry of any sort was held in the matter and though the removal was stigmatic in nature as certain complaints were allegedly received against respondents and formed basis of passing the impugned order, therefore, the appeal was rightly allowed by the Tribunal. ;