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IN THE HIGH COURT OF ALLAHABAD
S. H. A. RAZA, R. P. NIGAM
AMIR ALAM KHAN - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
W. P. 3190 Of 2000
Decided On : 07/03/2001
The Chairperson of the U. P. Sunni Central Board of Waqf, U. P. hereinafter called as the board, which is elected by the nominated and elected members of the Board, can function, only as long he enjoys the confidence of the members, who have elected him, or can be subjected to power of amotion under the Common Law, in the absence of any statutory provision in the Waqf Act, 1995.
Fact of the Case:
The question, which requires consideration in the present writ petition is as to whether the Chairperson of the U. P. Sunni Central Board of Waqf, U. P. hereinafter called as the board, which is elected by the nominated and elected members of the Board, can function, only as long he enjoys the confidence of the members, who have elected him, or can be subjected to power of amotion under the Common Law, in the absence of any statutory provision in the Waqf Act, 1995.
Finding of the Court:
The Chairperson of the Board enjoys a fixed tenure of five years. This term can be curtailed by taking recourse to Ss. 19 and 20 of the Act, which provides for resignation of the Chairperson and the members and removal of Chairperson and the member. The fixed term of the Vice Chancellor in Dr. Boolchand v. Chancellor, Kurukshetra University (AIR 1968 SC 292) (supra), cannot be relied upon to support the contention that even if there is a fixed term, a person cannot be ousted because the appointment of the Vice Chancellor was held to be terminable before the expiry of the term of his appointment on account of the charges levelled against him and the services were terminated by the Chancellor after giving opportunity to show cause.
Issues: 1. Whether the Chairperson of the U. P. Sunni Central Board of Waqf, U. P. hereinafter called as the board, which is elected by the nominated and elected members of the Board, can function, only as long he enjoys the confidence of the members, who have elected him, or can be subjected to power of amotion under the Common Law, in the absence of any statutory provision in the Waqf Act, 1995. 2. Whether the Chairperson of the Board enjoys a fixed tenure of five years.
Ratio Decidendi: 1. The Chairperson of the Board enjoys a fixed tenure of five years. This term can be curtailed by taking recourse to Ss. 19 and 20 of the Act, which provides for resignation of the Chairperson and the members and removal of Chairperson and the member. 2. The fixed term of the Vice Chancellor in Dr. Boolchand v. Chancellor, Kurukshetra University (AIR 1968 SC 292) (supra), cannot be relied upon to support the contention that even if there is a fixed term, a person cannot be ousted because the appointment of the Vice Chancellor was held to be terminable before the expiry of the term of his appointment on account of the charges levelled against him and the services were terminated by the Chancellor after giving opportunity to show cause.
Final Decision: The writ petition succeeds. A writ in the nature of certiorari quashing the notification dated 30-5-2000 issued by respondent No. 1 bearing No. 849/bawan-2-2000-2 (24)-98-T-C. as well as Resolution dated 22-5-2000 is issued, and a writ in the nature of mandamus is also issued restraining the respondents from interfering in the functioning of Sri Amir Alam Khan as Chairperson of the U. P. Sunni Central Board of Waqf, Lucknow.
( 1 ) THE question, which requires consideration in the present writ petition is as to whether the Chairperson of the U. P. Sunni Central Board of Waqf, U. P. hereinafter called as the board, which is elected by the nominated and elected members of the Board, can function, only as long he enjoys the confidence of the members, who have elected him, or can be subjected to power of amotion under the Common Law, in the absence of any statutory provision in the Waqf Act, 1995.
( 2 ) BEFORE replying to the aforesaid question, it would be relevant to deal with the factual matrix as set out in the writ petition.
( 3 ) ON 22-4-1999, Government of U. P. issued a notification constituting the board The board consists of thirteen members, out of which seven members were elected from various constituencies and six are nominated. On 22-7-1999, Mr. Amir Alam Khan, the petitioner was elected as the Chairperson of the Board by the elected and nominated members of the Board. On 17-1-2000, the members of the Board expressing no-confidence against the Chairperson ceased all his powers, which were earlier delegated to him. The meeting was attended by seven members of the Board, who put up their signature on the said motion, which was forwarded to the Secretary, Minority Welfare and Waqf, Vidhan Sabha Marg, Lucknow demanding that the Chairperson be restrained from discharging the powers delegated to him by the Board on 11-8-1999.
( 4 ) AS no action was taken by the State Government, one Sri Arshad Rashid Khan filed writ petition bearing No. 14954 of 2000 before the High Court at Allahabad, praying for issuance of a writ of mandamus commanding the Secretary, Minority Welfare and Waqf, to convene the meeting of the Board for consideration of the motion of no-confidence against the Chairperson. On 30-3-2000, without issuing any notice to the petitioner, who was arrayed as respondent to the writ petition, the Division Bench consisting of Hon. Mr. Justice N. K. Misra, C. J. (as he then was) and Hon. Mr. Justice O. P. Garg passed the following order. "heard Sri Shashi Nandan, learned counsel for the petitioner as well as learned standing counsel. Respondent No. 3 Amir Alam Khan is the Chairperson of U. P. Sunni Central Board of Waqf, Lucknow. The petitioner and other members have brought a no-confidence motion against him. The grievance of the petitioner is that the respondent State of U. P. through respondent No. 1 has not convened any meeting for the purposes. The writ petition is finally disposed of with the direction that the respondent No. 1 State of U. P. through Secretary minority Welfare and Waqf, Secretariat, Lucknow shall hold the meeting of no-confidence motion against respondent No. 3 (sic) in order and appropriate action shall be taken without the specified period under the law. In this regard respondent No. 1 shall pass appropriate order within 15 days from the date of production of a certified copy of this order before him. "
( 5 ) ON 11-5-2000, Secretary issued a notice for holding the meeting on 22-5-2000 at 11 a. m. for consideration of no-confidence motion against the petitioner and the election of new Chairperson in place of the petitioner.
( 6 ) IN the said meeting, motion of no confidence was alleged to have been passed against the Chairperson and Mr,. Zafar Ahmad Farooqi was elected as the Chairperson of the Board. On 30-5-2000, a notification was issued by the State Government, appoinging Mr. Zafar Ahmad Farooqi as the Chairperson of the Board.
( 7 ) MAIN thrust of the petitioner is that an elected Chairperson under the Waqf Act, 1995, in absence of any statutory provision in the Act, cannot be removed by passing a motion of no-confidence by the members, who earlier elected the Chairperson, while respondent submitted that the members of the Board have not elected the Chairperson but appointed him as such and hence, if he has lost the confidence of the members, he can be ousted. It was also submitted that in the co
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