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2005 Supreme(AP) 1109

Andhra Pradesh High Court
Judges : G.ROHINI
Sk.Abdul Saleem - Appellant
Versus
A.P.State Wakf Board - Respondent
Decided On : 12-05-05

Headnote:

Wakf Act, 1995 – Section 67 – Constitution of India – Section 226 – Alternate Remedy – The writ petitioner is the President of the District Wakf Committee for Krishna district, for a period of two years – The impugned order was passed dissolving the District Committee and reconstituting a fresh committee – The said order is under challenge in this writ petition contending inter alia, that the impugned Order which was passed without recording any reasons to dissolve the District Committee, is in violation of the principles of natural justice, and on that ground alone it is liable to be set aside – It is further contended that all the allegations made in the show cause notice were already considered and discussed by the Committee and having been satisfied that the said allegations were unfounded, the term was earlier extended for another period of two years – Held, the Supreme court in Hirdaynarain v. Income Tax Officer, bareilly7 if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits, it would be ordinarily unjustifiable for the High court to dismiss the same on the ground of non-exhaustion of statutory remedies unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition – The ratio laid down in the above cases squarely attracts to the case on hand – As expressed above, since the competent authority failed to assign reasons as require under the statute, ex facie the impugned order is illegal and unsustainable – Therefore, existence of the alternative statutory remedy cannot be held to be a bar to entertain this writ petition under Article 226 of the constitution of India – Accordingly, court is of the opinion that the petitioner can maintain this writ Petition notwithstanding the availability of an alternative remedy of appeal under the wakf Act – Writ Petition Allowed

( 1 ) THIS Writ Petition is filed questioning the proceedings of the 1st respondent-A. P. Wakf board, dated 7-5-2005, whereunder, the district Wakf Committee for Krishna District was dissolved with immediate effect and a new committee consisting of 14 members as specified thereunder has been constituted.

( 2 ) THE Writ Petitioner is the President of the District Wakf Committee for Krishna district, which was constituted - vide proceedings of the Executive Officer of A. P. State Wakf Board dated 23-3-2004 for a period of two years i. e. , up to 22-2-2006. While so, the 1st respondent issued a notice dated 17-3-2005 calling upon the Writ petitioner to show cause as to why he should not be removed from the office of the President of the District Wakf Committee of Krishna district alleging that he committed several irregularities in discharging his functions. The writ Petitioner submitted a detailed reply dated 11 -5-2005 explaining all the allegations made in the show cause notice. However, the impugned order dated 7-5-2005 was passed dissolving the District Committee and reconstituting a fresh committee. The said order is under challenge in this Writ Petition contending inter alia, that the impugned Order which was passed without recording any reasons to dissolve the District Committee, is in violation of the principles of natural justice, and on that ground alone it is liable to be set aside. It is further contended that all the allegations made in the show cause notice were already considered and discussed by the Committee and having been satisfied that the said allegations were unfounded, the term was earlier extended for another period of two years from 23-7-2004. Hence, it is not permissible to reopen the issue and to pass the impugned proceedings on the basis of the very same allegations, which were found to be baseless.

( 3 ) IN spite of the Rule Nisi ordered long back on 10-5-2005, the 1st respondent - Wakf board, failed to file its counter-affidavit, rebutting the allegations made by the petitioner northe records were made available to this Court. However, the learned Standing counsel appearing forthe Wakf Board raised a preliminary objection as to the maintainability of the Writ Petition contending that since an alternative remedy of appeal is available under the Statute, without exhausting the said alternative remedy, the petitioner cannot maintain this Writ Petition.

( 4 ) THE respondents 4 to 7, who claim to be the members of the fresh Wakf District committee constituted under the impugned order dated 7-5-2005, filed separate counter- affidavits, pleading that pursuant to the impugned Order dated 7-5-2005, the new committee has taken charge on 9-5-2005 itself, and thus the new committee is continuing as on the date.

( 5 ) THE learned counsel for the respondents 4 to 7 vehemently contended that though the impugned Order was suspended by this Court on 10-5-2005, since by that date the new committee had already taken charge in accordance with the impugned Order, the writ Petition is liable to be dismissed as infructuous. The learned counsel further contended that the impugned Order, which was passed strictly following the procedure as contemplated under Section 67 of the wakf Act, 1995, and after affording a reasonable opportunity to the petitioner to submit his explanation, is not amenable to the jurisdiction of this Court under Article 226 of the Constitution of India.

( 6 ) THE learned counsel also contends that since the power of supersession conferred under Section 67 of the Wakf Act can be exercised on the subjective satisfaction of the Board, the mere fact that reasons were not recorded is immaterial and on that ground the impugned Order cannot be held to be vitiated. The further contention is that since reasons for the proposed action of removal were specified in detail in the show cause notice, it is not mandatory to assign the reason in the final order. According to the learned counsel since it was clearly st













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