Mohammad Mohsin vs M.P. State Waqf Board and another

This petition has been filed under Article 226 of the Constitution of India against the order dated 24.11.2017 passed by the M.P. State Waqf

Board, Bhopal through its Chief Executive Officer whereby the Chief Executive Officer of the Waqf Board has issued the order of suspension of

the petitioner from the post of Chairman of the Waqf Takia Dargah Masjid, Mukundpur District Satna. The petitioner has also challenged the

notice dated 5.12.2017 whereby the Chief Executive Officer of Waqf Board has directed the petitioner to file the reply to the said notice within 15

days failing which the appointment of Chairman of the Committee shall be cancelled.

Counsel for the petitioner has vehemently argued before this Court that the order passed by the Chief Executive Officer who is also arrayed in

personal capacity is without jurisdiction on the ground that both these order as well as the show cause notice have been issued by the Chief

Executive Officer without any jurisdiction as the Chief Executive Officer has no power to issue such order of suspension or such show cause

notice. The petitioner''s contention is that the order for appoinjktment of the Committee can be passed by the Waqf Board only and under Section

67(2) of the Waqf Act, 1995 there is no provision of suspension of the Society and also no power to terminate the society, hence the aforesaid

order is liable to be quashed.

Counsel for the respondents on the other hand has submitted that the Chief Executive Officer has been appointed under Section 38 of the Waqf

Act, 1995 (hereinafter referred to as ''the Waqf Act'') only and so far as the impugned order and notice are concerned, his role is limited to the

extent of communication of the same on behalf of the Board only and as such he himself has not passed any order on his own. Counsel for the

respondents has further submitted that the order is purportedly passed under the provisions of Section 67(2) of the Waqf Act, 1995 which also

provides for remedy of appeal against whom such an order is passed and without availing the aforesaid remedy of appeal wherein all the

contentions raised by the petitioner can very well be agitated, the writ petition is misconceived and is liable to be dismissed.

Heard learned counsel for the parties and perused the record.

From the impugned order (Annexure P/1) this Court finds that the same has been passed by the Chief Executive Officer of the M.P. Waqf

Board and a show cause notice has also been issued by the same Chief Executive Officer of the M.P. Waqf Board. The CEO is appointed under

Section 23 of the Waqf Act which reads as under :

Appointment of Chief Executive Officer and his term of office and other conditions of service.- (1) There shall be a Chief Executive Officer of

the Board who shall be a Muslim and shall be appointed by the State Government, in consultation with the Board, by notification in the Official

Gazette.

(2) The term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed.

(3) The Chief Executive Officer shall be ex officio Secretary of the Board and shall be under the administrative control of the Board.

Thus, the appointment of the Chief Executive Officer is under the provisions of the Waqf Act only whose duties have also been delineated under

Section 25 to Section 27 of the Act and if such letters have been issued by him under the seal of the Waqf Board then it cannot be said that the

CEO has usurped the power of the Board. Otherwise also no such document has been placed on record to demonstrate that the Chief Executive

Officer was not appointed by the Waqf Board. On the other hand, so far as the merits of the case are concerned, the petitioner shall have ample

opportunity to contest the matter by filing reply to the show cause notice and in case of any adverse order also to prefer an appeal under the

provisions of Section 67 of the Act. Counsel for the respondent has also relied upon the order passed by this Court in W.P. No.16944/2017 in

the case of Shamim Ahmad vs M.P. Waqf Board wherein the petition was dismissed on the ground of availability of alternative efficacious remedy

which was also challenged before the Division Bench in W.A. No.199/2017 wherein the Division Bench has also affirmed the order passed by this

Court regarding the availability of appeal.

In these circumstances, this Court finds that the grievance of the petitioner is clearly misplaced and he can very well raise all these objections

before the concerned authority while replying the show cause notice and in case of any adverse order the remedy of appeal under Section 67 of

the Waqf Act is also available to him.

In such circumstances the petition being devoid of merit is dismissed on the ground of availability of efficacious alternative remedy to the

petitioner.