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Judgment
(1) The matter comes up on an application (No.34633/2018) filed in S.B.Civil Writ Petition No.3099/2018 moved by the State seeking vacation of the ex parte interim order passed by this Court on 16.02.018 whereby the order dated 9.11.2017 was stayed.
(2) Vide order dated 9.11.2017 the petitioner’s Membership as a Member of the Rajasthan Wakf Board was cancelled on account of he being removed from the post of Mutawalli of Dargah Khwaja Fakhruddin Chisti Sahab Sarwad, Kekri. The order dated 2.11.2017 whereby the petitioner was removed from the post of Mutawalli was stayed by this Court in S.B.C.W.P.No.19861/2017 on 15.01.2018.
(3) Learned Additional Advocate General Mr. Rajendra Prasad submits that the interim order passed by this Court staying the operation of the order dated 2.11.2017 was challenged in D.B.Special Appeal (Writ) No.132/2018 wherein the Court has passed the following order on 16.02.2018 : -
“In both appeals common question of law and facts are involved, hence, they are decided by this common judgment.
By way of these appeals, the appellants have challenged the judgment and order of the learned Single Judge whereby the learned Single Judge has stayed the order of removal of the respondent herein as a Mutawalli of Dargah Khwaja Fakhruddin Chisti Sahab Sarwad, Kekri. After hearing the counsel, ad interim relief was granted which was subsequently confirmed.
We make it clear that it will not be appropriate in this intra court appeal to disturb the discretion once exercised by the learned Single Judge. However, we make it clear that respondent- original petitioner will continue to act as a Mutawalli of Dargah Khwaja Fakhruddin Chisti Sahab Sarwad, Kekri and will do only day to day work but will not take any policy decision and will not spend any amount without the approval of the Committee. Any box of gifts will be opened in the presence of the Committee where an officer of the Board will be invited.
Both the appeals stand disposed of.
If a request is made by either side, we hope that the learned Single Judge will expedite the matters and will try to dispose of the writ petitions as expeditiously as possible.”
(4) In the circumstances it is submitted that the stay granted by this Court should also be made subject to the order passed by the Division Bench as quoted above. It is also stated that there was a concealment by the petitioner as the D.B.Special Appeal was listed on the same day when the interim order was passed and the order passed by the Division Bench was not received and it was not informed to the Single Bench that the case was listed before the Division Bench on that day.
(5) Learned Sr. Counsel Mr. R.N.Mathur appearing for the petitioner submits that the fact regarding listing of the appeal, after notices before the Division Bench was informed to the Court. However, there was no interim order passed by the Division Bench on 16.02.2018. It is further submitted that the Division Bench has not restrained the petitioner from continuing as a Mutawalli and, therefore, in terms of Section 20(2) of the Wakf Act, 1995 (hereinafter to be referred as the ‘Act of 1995’), the petitioner would be deemed to continue as a Member of the Wakf Board representing the Mutawalli’s as he is an elected Member.
(6) Taking note of the submissions of both the parties as above, this Court finds that the petitioner has been directed to be continued to act as Mutawalli of Dargah Khwaja Fakhruddin Chisti Sahab Sarwad, Kekri. However his functioning as a Mutawalli has been restricted by the Division Bench as noted above. The question regarding restricting the petitioner’s functioning as a Member of the Wakf Board however, has not been examined by the Division Bench. A look at Section 20(2) of the Act shows that a Mutawalli can only represent the other Mutawallis after being elected as a Member of the Wakf Board. Since the Division Bench has allowed the petitioner to act as Mutawalli, the order by which the petitioner has been removed as a Member of the Wakf Board cannot be allowed to be sustained and till the petitioner continues to act as Mutawalli of Dargah Khwaja Fakhruddin Chisti Sahab Sarwad, Kekri, he would continue to act as a Member of the Wakf Board. The request of the learned Additional Advocate General that his Membership of Wakf Board would be subject to the order passed by the Division Bench cannot therefore be accepted as the Division Bench has not examined the issue at all. However, taking note of the observations made by the Division Bench, S.B.Civil Writ Petition No.19861/2017 is directed to be heard on 24.07.2018 for final hearing.
(7) With the aforesaid observations, the application (No.34633/2018) filed in S.B.Civil Writ Petition No.3099/2018 is dismissed.