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Mohd. Dilawar Ali Vs. Andhra Pradesh Muslim Wakf Board and ors. - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 104 of 1964
Reported inAIR1967AP291; (1968)ILLJ305AP
ActsWakf Act, 1954 - Sections 16, 21(2), 21(3), 22 and 68(2); Constitution of India - Article 226; Evidence Act, 1872 - Sections 115
AppellantMohd. Dilawar Ali
RespondentAndhra Pradesh Muslim Wakf Board and ors.
Appellant AdvocateV.S.L. Narasimha Rao, Adv. for ;A. Kuppuswamy, Adv.
Respondent AdvocateJaleel Ahamed, Adv.
.....act, 1954, article 226 of constitution of india and section 115 of indian evidence act, 1872 - wakf board ratified termination order passed by its administrative committee - whether such ratification amounts to exercise of power under section 22 of act - ratification of order of authority which was improperly constituted and which lacks jurisdiction did not amount to original order passed by ratifying authority - held, order ratifying termination invalid. - - there were several such committees appointed one of which was empowered on 13-5-61 to make appointments, dismissals or removal of the staff pursuant thereto, this committee passed a resolution on 21-5-61 that all the then employees as well as other applicants could apply for appointment to the several posts enumerated by..........writ petition of the appellant on the ground that the order of the administrative committee of the wakf board was ratified by the board, and that at any rate the appellant is estopped from denying the authority of the administrative committee having applied for being appointed to one of the posts advertised by the board. the writ petition was filed by the appellant in the following circumstances:-the appellant who was a deputy collector in one of the jagirs of the erstwhile hyderabad state, namely paigab, was appointed first in a temporary leave vacancy for one and a half months and subsequently in a vacancy caused by the termination of the services of one gulam mohiuddin, an inspecting officer, as a probationer and posted to nizamabad in april, 1957. after that appointment there is.....

Jaganmohan Reddy, C.J.

(1) This is an appeal against the judgment of our learned brother Gopal Rao Ekbote, J., dismissing the Writ Petition of the appellant on the ground that the order of the Administrative Committee of the Wakf Board was ratified by the Board, and that at any rate the appellant is estopped from denying the authority of the Administrative Committee having applied for being appointed to one of the posts advertised by the Board. The writ petition was filed by the appellant in the following circumstances:-

The appellant who was a Deputy Collector in one of the Jagirs of the erstwhile Hyderabad State, namely Paigab, was appointed first in a temporary leave vacancy for one and a half months and subsequently in a vacancy caused by the termination of the services of one Gulam Mohiuddin, an Inspecting Officer, as a probationer and posted to Nizamabad in april, 1957. After that appointment there is nothing on record to show that his probation was declared. However, it is clear that his pay in May, 1961 was Rs. 92 in the grade of Rs. 80-4-100 which indicates that he had earned three increments. Thereafter the Wakf Board appointed an Administrative Committee on 26-3-1961 consisting of one member of the Board and four outsiders for attending to the administrative matters of the Board. There were several such committees appointed one of which was empowered on 13-5-61 to make appointments, dismissals or removal of the staff Pursuant thereto, this committee passed a resolution on 21-5-61 that all the then employees as well as other applicants could apply for appointment to the several posts enumerated by them in that resolution and that the services of any person who has applied and no selected would be deemed to be terminated. Pursuant to this resolution, the Secretary of the Board published a notification in various newspapers including the 'Siasat' on 11-6-61 calling in applications for appointment to the various posts. Apart from this on 15-6-61, the Secretary of the Board wrote to the appellant as follows:-

'In accordance with the resolution of the Administrative Committee of the Board dated 21st May, 1961 this is to inform you that unless you are selected by the selection Board following the advertisement of the posts in the press, your services will be terminated after one month from 20th June 1961, and that you should therefore, apply for the post you hold or desire and appear for interview by the Selection Board.' In compliance with this letter, the appellant made an application on 27-6-61 for the post of Chief Inspecting Officer or Assistant Secretary. It may here be reiterated that the appellant was holding the post of an inspecting officer and this application was made for post carrying higher emoluments than the post he was holding. The interviews were held on 11-7-61 but the applicant was not selected. On 18-7-61 the Administrative Committee passed a resolution terminating the services of the petitioner and others from 19-7-61. This resolution and all the other resolutions of the Administrative Committee were ratified by the Board on 15-10-61 after which the petitioner-appellant's services were terminated.

(2) Before our learned brother several contentions were raised, some of which are, (1) that the delegation by the Board of its powers to the Administrative Committee was not valid it being ultra vires the powers conferred on the Board (2) that the Administrative Committee was not properly constituted and consequently all acts of that committee are void ab initio (3) and that the subsequent ratification by the Board cannot cure and validate the acts of the Administrative Committee which were illegal & void while the respondents contend that there is an estoppel by reason of the petitioner-appellant making an application to the Administrative Committee notwithstanding the fact that either the delegation or the act of the committee was ultra vires and void. On the first two contentions, our learned brother held that the delegation was bad and that the committee was not properly constituted. On the other two submissions he held that the Board had ratified the decision of the Administrative Committee and any defect that may have been existing was cured thereby, and that in any case the petitioner-appellant was estopped from challenging the decision of the Board.

(3) Mr. Narasimha Rao appearing for Mr. Kuppuswamy while reiterating the above four contentions has raised a further contention before us viz., that the Board itself could not have terminated the services without conforming to the principles of natural justice, much less delegate that power to a committee.

(4) In order to appreciate these contentions it is necessary to read the relevant provisions of the Wakf Act, 1954, hereinafter to be referred to as the Act. The relevant provisions are found Ss. 15, 16, 21 and 22 of the Act and read as follows:-

'15. Functions of the Board:

(1)subject to any rules that may be made under this Act, the general superintendent of all wakfs in a State shall vest in the Board established for the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purpose for which such wakfs were created or intended;

Provided that in exercising its powers under this Act in respect of any wakf the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the Muslim law.

(2) .. .. ............


16. Committees of the Board:

(1) The Board may, whenever it considers necessary, establish either generally or for a particular purpose or for any specified of wakfs, areas committees for the supervision of wakfs.

(2) The constitution, functions and duties of such committee shall be determined from time to time by the Board,

(17)............ .......... ........... ..........(18) ............ .............. ............. ............(19)............... ............... ............(20) ......................... ....................... ............ 21.Secretary and other officers of the Board:

(1)There shall be a Secretary to the Board who shall be a Muslim and shall be appointed by the State Government, in consultation with the Board.

(2) The Secretary shall be the Chief Executive Officer of the Board and shall be under its administrative control.

(3)The Board may appoint such other officers and servants as it may consider necessary for the efficient performance of its functions under this Act.

22. Delegation The Board may, by a general or special order in writing delegate to the chairman or any other members or to the Secretary or any other officer or servant of the Board, subject to such conditions and limitations (if any) as may be specified in the order, such of its powers and duties under this Act as it may deem necessary.'

Apart from the above provisions relevant for the determination of this case, we may also point out that under Section 68 of the Act, the Board with the previous sanction of the State Government, is empowered to make certain regulations not inconsistent with the Act or the rules made thereunder for carrying out its functions under the Act.

Sub-section (2) specifies certain matters with respect to which regulations may be made in particular and without prejudice to the generality of the foregoing powers. Under Cl. (E) to sub-section (2) of section 68 regulations can be made by the Board with the previous sanction of the Government in respect of the terms and conditions of service of the officers, and servants of the Board.

(5) It is admitted by Mr. Jaleel Ahmed that no rules or regulations have been made under any of the provisions of the Act prescribing the terms and conditions of service of the servants or officers employed by the Board. In the circumstances any appointments made are governed under the general law either by a contract or the terms of a contract of service whether express or implied, appointment so made could be terminated subject to those terms or by the application of the principles of natural justice and the general law. The conclusion to which our learned brother has reached as to the invalidity of the delegation or on the constitution of the Administrative Committee is unassailable and Mr. Jaleel Ahmed for the Department also, in our view, quite properly concedes that having regard to the provisions of the Act, the powers under section 21(3) could not be delegated under section 22 of the Act. It was at one time sought to be contended before our learned brother that the delegation is the power conferred under section 16 is to constitute committees merely for the supervision of wakfs and for no other purpose. The supervision of a wakf does not include the appointment or termination of the services of an officer or a servant which is specifically provided under section 21(3) and which the Board alone can exercise. It is not disputed in this case that the delegation envisaged in section 22 is only to the Chairman or any other member or to the Secretary or any other officer or servant of the Board, and it is not pretended that any such delegation has been made in this case. The committee as we have already observed consisted of a member of the Board and four outsiders and therefore was not in conformity with the statutory provisions pertaining to delegation as contained in Section 22 of the Act. The Committee so constituted neither has jurisdiction to entertain applications for appointment nor does it have any power to terminate the services of the existing employees. As we have already observed an administrative committee such as has been consisted could not be constituted. It has no legal sanction and therefore lacks the initial jurisdiction and every act of it is ab initio void. When the Committee could not call of replications the presentation of an applications pursuan to the notification advertised in exercise of such a non-existent power cannot and will not amount to an estoppel. In Sheik Hussain and Sons v. State of Andhra Pradesh, : AIR1964AP36 (FB), a Full Bench of this court, the scope of section 44(2) regarding the composition of a Tribunal under the Motor Vehicles Act was considered. Under section 44 (2) of the said Act it is provided that the State Transport Authority or a Regional Transport Authority shall consist of a Chairman and two members to function as an authority, and the question before the court was whether a chairman sitting alone and hearing an appeal, could discharge, the functions of such an authority. The Full Bench held that if the statute requires that the Tribunal should be composed of a certain number of members, obviously, a lesser number cannot perform the functions of the Tribunal. A Tribunal whose composition is not in accordance with the statutory requirements has no jurisdiction to decide a question arising under the statute. In such a case the question goes to the root of the jurisdiction of the tribunal and is not a matter of mere irregularity in the conduct of its proceedings. Want of jurisdiction in these cases arose from the absence of an essential preliminary with regard to the composition of the Tribunal. The constitution and composition of a Tribunal being a condition precedent to the exercise of its jurisdiction there is an initial lack of jurisdiction which renders its proceedings void. It was also further held that once the court is satisfied that the Tribunal has exceeded its jurisdiction, a writ of certiorari must issue in spite of the acquiescence of the applicant or want of the objection on his part. The principle in such a case is that the exercise of an unauthorised jurisdiction amounts to an usurpation of jurisdiction and renders the decision of the Tribunal a nullity. It is duty of the Court to remove the void order by issuing Writ of Certiorari. We therefore find unnecessary to refer to further authorities on this aspect of the case.

(6) It is, however, contended by Mr. Jaleel Ahmed that while admitting that the administrative Committee was not vested with the jurisdiction, it not being constituted in accordance with the statutory requirements none-the-less the impugned order cannot be challenged because the Wakf Board which admittedly had the power to terminate the services of the appellant did terminate it by ratifying the act of the Administrative Committee, and whatever, be the defect of the act of the Administrative Committee when it was ratified by the Board it should be deemed to have been made by the Wakf Board itself. But we are not prepared to accept this argument. As we have pointed out earlier, the application which he was holding but for a higher post. There was no question of the appellant's service being terminated because he could not get a higher post of the Chief Inspector or Assistant Secretary. When he was not selected for that post, even assuming that the Administrative Committee had jurisdictions application could at best be rejected. Secondly, the resolution the Administrative Committee dated 21-5-61 terminating the services of all the employees of the Board if they are not again selected by them is of no validity. Thirdly, the ratification by For upon it the statutory sanction, which it did not possess. This ratification cannot amount to the exercise of powers under Section 22 of the Act which contemplate the decision to be of the Board itself, and not a ratification by the Board of a decision of an unauthorised or incompetent body or authority. In the absence of any evidence to the contrary our learned brother assumed that the Board did the duty which was imposed on it by the Act and the Board itself formed an opinion upon both the questions of modification of the appointment order and the termination of the petitioner's services in case he is not selected. With great respect we are unable to adopt this principle because it is the duty of the wakf board to show by some evidence, such as statements of persons who had taken part in the meeting of the Board, that it had considered the case of the appellant before terminating his services. In the absence of any such evidence, it must be presumed that the ratification was of a general nature on the assumption that the administrative committees were validly constituted under the Act and that they can exercise the powers conferred thereunder. Once the foundation for the initial jurisdiction exercised by these committees of any statutory powers under the Act is negatives, a mere formal ratification will not cure the defect. In Suraj Narration v. N.W.F. Province, AIR 1942 FC 3 it was held that where the responsibility for the passing of a particular kind of order is by statute vested in a specified authority, the fact that the proper appellate authority affirmed the original invalid order doesn't cure the invalidity thereof. This view was affirmed by their Lordships of the Supreme Court in Ram Chandra v. Shankraamma, : AIR1956SC319 who also referred in this connection to the cases of The King v. Electricity Commrs., 1924-1 KB 171 and Bharat Bank Ltd. V. Employees of Bharat Bank Ltd., : (1950)NULLLLJ921SC . Their Lordships confined their observations to those cases where the intended order according to the scheme of the statutory provisions relating thereto was the original order itself and not the appellate or confirming order. In : AIR1956SC319 however, the point for consideration was whether the ratification by the Chief Minister of an order passed by the Revenue Minister was valid. We are not however, concerned with that question. We have only referred to these cases to show that the ratification of an order of an authority which is illegal or improperly constituted and which inherently suffers from lack of jurisdiction does not amount to the ratifying Authority passing the order as an original order under the powers vested in it by the statute.

(7) Mr.Narasimha Rao also cited certain passages from Street's Doctrine of Ultra Vires and Powell's law of agency. In the first book (1930 Edition) the learned author street at page 391 says:

'If, as will be submitted the plea of ultra vires in the primary sense cannot be met by a plea of estoppel, it would appear to follow that neither ratification nor acquiescence, which operate by equitable estoppel, can affect an ultra vires transaction so as to make it good.' Raphall Powell at page 123 of the second edition observes that an act which is void ab initio cannot be ratified. There is no doubt in our minds that the ratification by the Board cannot cure the defect and the termination order of the appellant cannot be justified. Mr. Jaleel Ahamed relied upon the decision cited by our learned brother, which were all cases in which appointment of the agent was not challenged but only the exercise of his powers was alleged to have been in excess of the scope of the agency. In such circumstances there is no doubt that the ratification by the principal of such an act could be made; but where the very appointment itself is for some reason of other invalid, there can be no question of ratification of any act purporting to have been done by such person.

(8) Mr. Jaleel Ahmed further stated that the result of the quashing of the order may amount to the person being kept in service indefinitely but we cannot accept that the would be the logical conclusion. It is always open to the Board to make rules or regulations or even if it wants to terminate his services, it could do so under the general law subject to such reasonable notice he would be entitled to. In the view we have taken, the order of termination is invalid and must be quashed.

(9) The appeal is allowed with costs here and before our learned brother. Advocate's fee Rs. 100/-.

(10) Appeal allowed.

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