Allahabad High Court Judgement

Allahabad High Court Judgement

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice at mail@myadvocates.club
JUDGEMENT HEADLINE : Natural Justice Has To Be Observed In The First Instance Before The Wakf Board Arrives At Its Satisfaction Upon An Inquiry Held U/s 52(1) Of Wakf Act
JUDGEMENT TITLE : Jaspreet Singh Vs. U.P. Sunni Central Waqf Board & 6 Others On 27/08/2014 By Allahabad High Court
CASE NO : WRIT - C NO. 43784 OF 2014
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Dilip Gupta,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Chief Justice's Court

Case :- WRIT - C No. - 43784 Of 2014

Petitioner :- Jaspreet Singh
Respondent :- U.P. Sunni Central Waqf Board & 6 Others
Counsel For Petitioner :- Triveni Shankar,Ajay Shankar
Counsel For Respondent :- C.S.C.,Bakhteyar Yusuf, Mahboob Ahmad

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice
Hon'ble Dilip Gupta, J.

The Issue Before The Court Turns Upon An Interpretation Of The Provisions Of Section 52 Of The Wakf Act, 19951. More Specifically, The Question Which Falls For Determination Is Whether A Requirement Of A Hearing Is Part Of The Provisions Of Section 52(1) Of The Act So As To Be Observed By The Wakf Board When It Conducts An Inquiry And Issues Requisitions To The Collector To Obtain And Deliver Possession Of Wakf Property Subject To Its Satisfaction That Any Immovable Property Of A Wakf Entered As Such In The Register Maintained Under Section 36 Has Been Transferred Without The Previous Sanction Of The Board.
The Impugned Order Which Has Been Passed By The Chairperson Of The Wakf Board On 9 May 2014 (Annexure-34) Admittedly Has Been Passed Without A Notice Or Hearing To The Petitioner. The Submission Of The Petitioner Is That In The Course Of The Inquiry Which Is Conducted By The Board Under Section 52(1) Of The Act, A Hearing To An Affected Individual Is Contemplated. On The Other Hand, The Submission Which Has Been Urged On Behalf Of The First And The Fifth Respondents Is That No Requirement Of A Hearing Can Be Read Into The Provisions Of Section 52(1) Of The Act And It Is Only Upon A Requisition Being Issued By The Collector For Handing Over Possession Of The Property That An Appeal Is Provided To The Tribunal In Which An Opportunity Of Hearing Would Be Afforded.
In Order To Appreciate The Rival Submissions, It Would Be Appropriate To Refer To The Provisions Of Section 52 Of The Act Which Are As Follows:-
"52. Recovery Of Wakf Property Transferred In Contravention Of Section 51.-(1) If The Board Is Satisfied, After Making Any Inquiry In Such Manner As May Be Prescribed, That Any Immovable Property Of A Wakf Entered As Such In The Register Of Wakf Maintained Under Section 36, Has Been Transferred Without The Previous Sanction Of The Board In Contravention Of The Provisions Of Section 51, It May Send A Requisition To The Collector Within Whose Jurisdiction The Property Is Situated To Obtain And Deliver Possession Of The Property To It.
(2) On Receipt Of A Requisition Under Sub-section (1), The Collector Shall Pass An Order Directing The Person In Possession Of The Property To Deliver The Property To The Board Within A Period Of Thirty Days From The Date Of The Service Of The Order.
(3) Every Order Passed Under Sub-section (2) Shall Be Served-
(a)by Giving Or Tendering The Order, Or By Sending It By Post To The Person For Whom It Is Intended; Or
(b)if Such Person Cannot Be Found, By Affixing The Order On Some Conspicuous Part Of His Last Known Place Of Abode Or Business, Or By Giving Or Tendering The Order To Some Adult Male Member Or Servant Of His Family Or By Causing It To Be Affixed On Some Conspicuous Part Of The Property To Which It Relates:
Provided That Where The Person On Whom The Order Is To Be Served Is A Minor, Service Upon His Guardian Or Upon Any Adult Male Member Or Servant Of His Family Shall Be Deemed To Be The Service Upon The Minor.
(4) Any Person Aggrieved By The Order Of The Collector Under Sub-section (2) May, Within A Period Of Thirty Days From The Date Of The Service Of The Order, Prefer An Appeal To The Tribunal Within Whose Jurisdiction The Property Is Situate And The Decision Of The Tribunal On Such Appeal Shall Be Final.
(5) Where An Order Passed Under Sub-section (2) Has Not Been Complied With And The Time For Appealing Against Such Order Has Expired Without An Appeal Having Been Preferred Or The Appeal, If Any, Preferred Within That Time Has Been Dismissed, The Collector Shall Obtain Possession Of The Property In Respect Of Which The Order Has Been Made, Using Such Force, If Any, As May Be Necessary For The Purpose And Deliver It To The Board.
(6) In Exercising His Functions Under This Section The Collector Shall Be Guided By Such Rules As May Be Provided By Regulations."

Sub-section (1) Of Section 52 Empowers The Wakf Board To Send A Requisition To The Collector Within Whose Jurisdiction The Immovable Property Is Situated To Obtain And Deliver Possession Of The Property To It. The Pre-condition For The Issuance Of A Requisition Is The Satisfaction Of The Board That Any Immovable Property Of A Wakf Entered As Such In The Register Of Wakfs Maintained Under Section 36 Has Been Transferred Without The Previous Sanction Of The Board In Contravention Of The Provisions Of Section 51. The Satisfaction Of The Board Has To Be Arrived At After The Board Makes An Inquiry In Such Manner As Is Prescribed. The Satisfaction Has To Be Two Fold : Firstly That Any Immovable Property Is Of A Wakf And Has Been Entered In The Register Of Wakfs Maintained Under Section 36; And Secondly That Such Property Has Been Transferred Without The Previous Sanction Of The Board In Contravention Of The Provisions Of Section 51. Once An Inquiry And Recording Of Satisfaction Are Contemplated By The Statute, The Principles Of Natural Justice Must Necessarily Be Read Into The Provisions Of Sub-section (1) Of Section 52.
It Is A Well Settled Principle Of Law That Where An Order Entails Civil Consequences, The Principles Of Natural Justice Must Be Implicitly Read Into A Statutory Provision Unless There Is A Specific Exclusion. In The Present Case, There Are Several Reasons, While Interpreting Section 52(1) Of The Act, To Hold That The Principles Of Natural Justice Must Be Observed. Firstly, Section 52 Speaks Of The Satisfaction Of The Wakf Board. Secondly, Section 52(1) Requires The Board To Arrive At Its Satisfaction After Making An Inquiry. Thirdly, The Satisfaction Is Not A Subjective Satisfaction But Is A Satisfaction Which Has To Be Arrived At Objectively On Two Specific Aspects Namely, (i) Whether The Property Is Entered In The Register Of Wakfs As A Wakf Property; And (ii) Whether It Has Been Transferred Without The Previous Sanction Of The Board In Contravention Of The Provisions Of Section 51. Fourthly, The Consequence Of The Satisfaction Being Recorded By The Wakf Board Under Section 52(1) Is That A Requisition Has To Be Sent To The Collector To Obtain And Deliver Possession Of The Property. Upon The Receipt Of A Requisition, Sub-section (2) Of Section 52 Makes It Obligatory On The Collector To Pass An Order Directing The Person In Possession To Deliver The Property To The Board Within Thirty Days Of The Service Of The Order. This Follows From The Use Of The Expression "the Collector Shall Pass An Order Directing The Person In Possession Of The Property To Deliver The Property To The Board".
But, The Submission Which Has Been Urged On Behalf Of The Contesting Respondent Is That A Remedy Of An Appeal To The Wakf Tribunal Is Provided Under Sub-section (4) Against The Order Of The Collector Under Sub-section (2). As A Matter Of Fact, The Ambit Of The Appellate Remedy Would Indicate That It Is Against The Order Of The Collector Directing A Person To Deliver Possession. The Presence Of An Appellate Remedy, It Is Well Settled In Administrative Law, Does Not Obviate Compliance With The Principles Of Natural Justice In The Course Of An Inquiry At The Original Stage. The Mere Fact That An Appeal Is Available Against An Order Is Not An Indicator That The Principles Of Natural Justice Are Excluded When The Original Order Is Passed. Natural Justice Has To Be Observed In The First Instance Before The Board Arrives At Its Satisfaction Upon The Inquiry Which Is Held Under Sub-section (1) Of Section 52.
In The Present Case, The Petitioner Had Earlier Moved Writ Proceedings2 Before This Court In Which An Order Was Passed By The Wakf Board Had Been Challenged. The Writ Proceedings Were Allowed By An Order Of A Division Bench Of This Court Dated 18 February 2014 With The Following Observations :
"Having Heard The Learned Counsel For The Parties, The Court Finds That The Order Of The Board As Depicted Does Not Comply With The Provisions Of Section 52(1) Of The Waqf Act, 1995, Inasmuch As No Satisfaction Of The Board Is Recorded In The Impugned Order Nor Any Reason Has Been Given.
Further, The Learned Counsel For The Petitioner States That No Opportunity Of Hearing Was Provided To The Petitioner.
In The Light Of The Aforesaid, The Impugned Order Cannot Be Sustained And Is Quashed. The Writ Petition Is Allowed. It Would Be Open To The Board To Pass A Fresh Order In Accordance With Law."

Admittedly, No Hearing Was Provided To The Petitioner By The Wakf Board Before The Impugned Order Was Passed. The Impugned Order, Apart From Directing The Chief Executive Officer To Issue A Requisition Under Section 52, Also Directs That Proceedings Be Initiated Under Section 54 Of The Act. Section 54 Contemplates Specifically The Issuance Of A Notice To Show Cause For The Removal Of An Encroachment From Wakf Property. However, For The Reasons Which We Have Indicated, We Have Come To The Conclusion That It Was Incumbent On The First Respondent, When It Held The Inquiry And Before Arriving At Its Satisfaction, To Furnish To The Petitioner An Opportunity Of Being Heard. The Impugned Direction Of The Wakf Board To The Effect That A Requisition Should Be Issued To The Collector For An Order To The Petitioner To Deliver Possession Of The Immovable Property Of The Board On The Ground That The Property Is Constituted As A Wakf Property And Was Transferred Without The Previous Sanction Of The Board, Directly Affects The Petitioner And Is A Matter Of Serious Prejudice. Such An Order Could Have Been Passed Only After Complying With The Principles Of Natural Justice.
For These Reasons, We Quash And Set Aside The Impugned Order Dated 9 May 2014 (Annexure-34) Of The Chairperson Of The First Respondent. However, We Clarify That We Have Expressed No Opinion On The Merits Of The Claim Of The Petitioner And We Leave It Open To The First Respondent To Pass Fresh Orders In Accordance With Law After Granting To The Petitioner A Reasonable Opportunity Of Being Heard.
The Writ Petition Is Allowed To The Extent Indicated Above.

Go to Navigation