Mohd. Asif Miyan vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. T.A. Khan, learned Senior Counsel appearing on behalf of the appellant-writ petitioner, Mr. Vikas Pande, learned Standing Counsel

appearing on behalf of the State of Uttarakhand-first respondent, Ms. Nishat Intezar, learned counsel appearing on behalf of the second respondent

and Mr. Siddhartha Singh, learned counsel appearing on behalf of the third respondent; and, with their consent, the Special Appeal is disposed of at the

stage of admission.

The appellant herein filed Writ Petition (M/S) No. 806 of 2019 seeking a writ of certiorari to quash the notification dated 15.11.2018 issued by the

State of Uttarakhand. By the notification, impugned in the Writ Petition, dated 15.11.2018 the appellant-writ petitioner was nominated as a Member of

the Wakf Board in the Senior Advocate category; and, in the vacancy which arose consequent thereto, the third respondent was nominated as a

Member under Section 14(b)(i) read with Section 14(3) of the Wakf Act. The validity of this notification dated 15.11.2018 was subjected to challenge

by the appellant herein before the learned Single Judge in Writ Petition (M/S) No. 806 of 2019 filed on 25.03.2019 (more than four months after the

impugned notification). By way of interim relief, the appellant herein sought a direction to stay the notification dated 15.11.2018.

In the order under appeal, the learned Single Judge noted that he was not inclined to grant an interim order in favour of the appellant-writ petitioner,

since grant of such an interim order would amount to granting a final order, in the shape of an interim order passed by the Court. The Stay Application

was, accordingly, rejected; and all the respondents were granted three weeks’ time to file their respective counter affidavits. Aggrieved thereby,

the present appeal.

Mr. T.A. Khan, learned Senior Counsel for the appellant-writ petitioner, would submit that, while the appellant-writ petitioner was initially appointed

as a Member of the Wakf Board by notification dated 25.10.2016, in terms of Section 14(3) of the Wakf Act, he was shifted, in terms of the proviso

to Section 14(1)(b)(iii), only to accommodate the third respondent in the category stipulated under Section 14(3) of the Wakf Act; any delay, in an

interim order being granted, would result in the third respondent exercising his powers as a Member of the Wakf Board; and it is, in such

circumstances, that the appellant herein had pressed for an interim order in the writ petition.

Mr. Siddhartha Singh, learned counsel for the third respondent, would submit that, while the learned Single Judge was initially inclined to grant time

to all the respondents to file their counter affidavits, it is on the insistence of the appellant-writ petitioner, that an order be passed in the Stay

Application, did the learned Single Judge pass the order under appeal; and the learned Single Judge was justified in holding that grant of an interim

order, which would amount to granting the final relief sought for in the Writ Petition, could not be ordered without counter affidavits being filed by the

respondents.

This Court would, ordinarily, not pass an interim order which has the effect of granting the final relief sought in the Writ Petition, without the

respondents being afforded an opportunity of filing their counter affidavits. The learned Single Judge cannot be said to have committed a patent error

in holding that an interim order could not be passed, which would amount to granting the final relief sought for in the Writ Petition, at the stage of

admission.

Mr. T.A. Khan, learned Senior Counsel appearing on behalf of the appellant-writ petitioner, would submit that dismissal of the Stay Application

would only mean that the Writ Petition would be taken up for final hearing several years later; and, in the meanwhile, the cause in the Writ Petition

itself would be rendered infructuous, as the term of office of the appellant-writ petitioner would itself end in the year 2021.

While it does appear that the order under appeal was passed only because the learned Senior Counsel appearing on behalf of the appellant-writ

petitioner had insisted that an order be passed in the Stay Application, the limitations imposed by this Court on itself is that no ex parte ad-interim order

should, ordinarily, be passed which would have the effect of granting the final relief sought for in the Writ Petition. That does not, however, mean that,

after the respondents enter appearance and file their respective counter affidavits, an interim order, of the nature sought as a final relief in the Writ

Petition, cannot be granted.

Suffice it, in such circumstances, to restore the Stay Application to file; and grant all the respondents three weeks’ time to file their respective

counter affidavits. It is open to Mr. A.K. Arya, learned counsel for the appellant-writ petitioner, to request the learned Single Judge to take up the

Stay Application for hearing, on any date, after three weeks from today.

The Special Appeal is, accordingly, disposed of. No costs.