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Judgment
Sudhanshu Dhulia, J
The petitioner before this Court is a member of Waqf Board. He was nominated as a member of Waqf Board on 15.11.2018 and now by the impugned order dated 10.06.2019 his membership has come to an end as he has been held to be disqualified in terms of Section 20 read with Section 16 of the Waqf Act, 1995.
Section 16 and Section 20 of the Waqf Act, 1995 read as under:-
"Section 16. Disqualification for being appointed, or for continuing as, a member of the Board.- A person shall be disqualified for being appointed, or for continuing as, a member of the Board if-
(a) he is not a Muslim and is less than twenty-one years of age;
(b) he is found to be a person of unsound mind;
(c) he is an undischarged insolvent;
(d) he has been convicted of an offence involving moral turpitude and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;
(da) he has been held guilty of encroachment on any waqf property;
(e) he has been on a previous occasion-
(i) removed from his office as a member or as a mutawalli, or
(ii) removed by an order of a competent court or tribunal from any position of trust either for mismanagement or for corruption."
(iii) Section 20. Removal of Chairperson and member.- (1) The State Government may, by notification in the Official Gazette, remove the Chairperson of the Board or any member thereof if he-
(a) is or becomes subject to any disqualifications specified in Section 16; or
(b) refuses to act or is incapable of acting or acts in a manner which the State Government, after hearing any explanation that he may offer, considers be prejudicial to the interests of the auqaf; or
(c) fails in the opinion of the Board, to attend three consecutive meetings of the Board, without sufficient excuse.
(2) Where the Chairperson of the Board is removed under sub-section (1), he shall also cease to be a member of the Board."
The case of the petitioner is that on the earlier occasion when he was a member of the Waqf Board (for the term of five years i.e. 22.06.2010 to 22.06.2015), he was removed on 25.04.2012. The petitioner had challenged the order dated 25.04.2012 before the Waqf Tribunal where his petition was allowed and the order by which he was removed as a member of the Waqf Board was set aside by the Waqf Tribunal vide order dated 12.02.2015. Now in the present impugned order dated 10.06.2019 the only reason assigned by the respondents for holding him disqualified as a member of the Waqf Board is that he had incurred disqualification in terms of Section 16 (e) (i) read with Section 20(1) (a) of the Waqf Act, 1995, inasmuch as he was earlier removed from the member of the Waqf Board.
However, the order by which the petitioner was earlier removed as a member of the Waqf Board was set aside by the judicial order, and therefore, that order does not survive.
No reliance ought to have been paid on the earlier order of the removal of the petitioner.
Moreover, the impugned order dated 10.06.2019 has been passed by the respondents without affording any opportunity of hearing to the petitioner. To that extent as well, the order is also bad.
Learned State Counsel would argue that the petitioner has an equally efficacious remedy to file an appeal before the Tribunal under Section 83 of the Waqf Act, 1995.
Indeed, the petitioner can avail the remedy under sub-section (2) of Section 83 of the Waqf Act, 1995. However, in this case, the existence of an alternative remedy before the Tribunal would not operate as a bar inasmuch as the present impugned order has been passed without affording an opportunity of hearing to the petitioner. Therefore, the alternative remedy would not be a bar.
This is for the reason that in case the law provides a remedy at two stages i.e. one before the concerned authority and later before the appellate authority, both opportunities have to be fair and must comply with the norms of natural justice and fair play. It does not mean that the authority can pass an order in violation of principle of natural justice and fair play and the same shall stand cured if the appellate authority gives an opportunity of hearing to the petitioner. At both the stages, the petitioner was required to be given an opportunity of hearing in terms of principle of natural justice and fair play, which has not been given in the present case.
In view of the above, the writ petition is allowed. The impugned order dated 10.06.2019 is hereby set aside.