Hon’ble Amitava Lala, ACJ.—The petitioners are outgoing Chairman and members of the Wakf Board. They have challenged the impugned order passed on 31st August, 2012, which is as follows:

“In exercise of the powers under sub-section (1) of Section 99 of the Wakf Act, 1995 (Act No. 43 of 1995), the Governor after giving reasonable time to show-cause and after considering the explanations and objections of the Uttar Pradesh Shia Central Wakf Board, hereby supersedes the said Board, from the date of publication of this notification in the Gazette, for a period of six months or up to the next order passed by the State Government in this regard, whichever is earlier.”

2. The main contention of the petitioners to challenge the same is that Section 99 of the Wakf Act, 1995 (hereinafter in short called as the “Act”) speaks that if the State Government is of the opinion that the Board is unable to perform or has persistently made default in the performance of, the duty imposed on it by or under this Act or has exceeded or abused its powers, or has wilfully and without sufficient cause failed to comply with any direction issued by the Central Government under Section 96 or the State Government under Section 97, or if the State Government is satisfied on consideration of any report submitted after annual inspection, that the continuance of the Board is likely to cause injury to the interest of the Wakf then in that case after giving reasonable time to the Board to show-cause and after considering the same, appropriate order is required to be passed by the State Government. The order, which is under challenge herein, has not been passed by the State Government but by His Excellency the Governor of Uttar Pradesh.

3. Mr. Jaideep Narain Mathur, learned Senior Counsel appearing for the petitioners, has argued at length mainly on the issues that no show-cause was served upon the Board and the impugned order is not backed by any reason. At least 15 days’ time is required to be given to file reply to the said show-cause, however, in the case in hand, 7 days’ time has been given which is too short. Best part of the causes pertains to service of notice to the old Board but not in respect of the new Board.

4. From the annexures, we find that a show-cause notice has been issued on 27th of July, 2012 by the concerned Secretary of the State, to which a reply has been given by the Wakf Board on 01st August, 2012. Therefore, the plea of not giving notice upon the Board becomes redundant. Though the petitioners tried to raise the plea that notice is required to be served upon the Board and not upon the Chairman that too he was then outgoing, we are of the view that once notice has been received and reply has been given and when the outgoing Chairman himself is the petitioner No. 1, the question as raised by Mr. Mathur is hypertechnical in nature. Principle of audi alteram partem has been fulfilled.

5. Mr. Z.Y. Jilani, learned Additional Advocate General of the State, has contended that the State respondents have already filed counter-affidavit giving explanations about show-cause and suspension of the Board. As regards factual issues, he submitted (a) Ground Nos. 4 and 5, which are in connection with the reply to the show-cause, pertains to the period during which the Board was functioning; and (b) Ground Nos. 1, 2 and 3, though relates to the previous period, but no reaction of the Board has been given regarding conduct of the previous Board. He has further contended that the dispute in connection thereto can be adjudicated by a Tribunal under Section 83 of the Act. The Governor is empowered to issue such direction as per the Government order dated 28th June, 1975. It empowers the Governor to discharge his duty by applying Clause 2 of Article 166 of the Constitution of India.

6. So far as two preliminary points with regard to the consideration by Tribunal and issuance of notification by the Governor are concerned, the same are required to be cons