Skip to content


Haji Anwar Ahmed Khan Vs. the Punjab Wakf Board and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 454 of 1980
Judge
Reported inAIR1980P& H306
ActsWakf Act, 1954 - Sections 11; Punjab Wakf Rules, 1964 - Rule 6
AppellantHaji Anwar Ahmed Khan
RespondentThe Punjab Wakf Board and ors.
Cases ReferredPunjab Gram Panchayat Act. In Hardatt Singh v. Block Development and Panchayat Officer
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply.....bhopinder singh dhillon, j. 1. respondent no. 1 punjab wakf board was constituted under the provisions of the wakf act, i954 (hereinafter referred to as the act). under s. 11 of the said act, haji anwar ahmed khan petitioner and respondents nos. 3 to 13 were appointed its members by the union of india, respondent no. 2, vide notification dated aug. 11, 1978, copy of which is attached as annexure p-1 with the writ petition. the tenure of the office of members so appointed is 6ve years. after the constitution of the board, the petitioner was elected as chairman of the respondent, board. on january 20, 1980, a meeting of the board was convened at ambala. this meeting was attended by 10 out of 11 members of the board. petitioner haji anwar ahmed khan was removed from the office of the.....
Judgment:

Bhopinder Singh Dhillon, J.

1. Respondent No. 1 Punjab Wakf Board was constituted under the provisions of the Wakf Act, I954 (hereinafter referred to as the Act). Under S. 11 of the said Act, Haji Anwar Ahmed Khan petitioner and respondents Nos. 3 to 13 were appointed its members by the Union of India, respondent No. 2, vide notification dated Aug. 11, 1978, copy of which is attached as Annexure P-1 with the writ petition. The tenure of the office of members so appointed is 6ve years. After the constitution of the Board, the petitioner was elected as Chairman of the respondent, Board. On January 20, 1980, a meeting of the Board was convened at Ambala. This meeting was attended by 10 out of 11 members of the Board. Petitioner Haji Anwar Ahmed Khan was removed from the office of the Chairman of the Board in that meeting, 8 members voted for the no cktn6dence motion. The petitioner voted against the no confidence motion and one of the members abstained from voting. After the petitioner was removed from the office of the Chairman of the Board, in the same meeting the members elected Khawaja Khalil Ullah, respondent No. 3 as Chairman. Out of 10 members, nine voted in his favour. The copy of the resolution passed in that meeting is appended as Annexure P-4 with the writ petition. The petitioner has challenged his removal from the office of the Chairman and so also the election of Khawaja Khalil Ullah, respondent No. 3 as Chairman of the Board against the vacancy caused by his removal on various grounds mentioned in the petition. However, at the time of arguments, the learned counsel for the petitioner has advanced only the following arguments in support of his case:--

(i) That there being no provision in the Act for passing a motion of no confidence against the Chairman once he has been elected, the removal of the petitioner from the office of the Chairman vide impugned resolution is without jurisdiction.

(ii) That even if it be held that a Chairman so elected under the Act could be removed by a vote of no confidence, the procedure for such removal has to be the same as prescribed under Rule 6 of the Punjab Wakf Rules 1964 (hereinafter referred to as the Rules), which is applicable of the election of the Chairman which has o take place in the first meeting of the 3oard held after its constitution.

(iii) That even if the removal of the Petitioner be held to be good in law, the election of respondent No. 3 Khawaja Khalil Ullah as Chairman of the Board against the vacancy caused by the removal of the petitioner could not be held in the same meeting and the same could only be held by following a procedure as laid down under Rule 8 of the Rules framed under the Act, which Rule provides for he election of the Chairman after the Board is constituted under the Act.

2. With a view to appreciate the contentions raised by the learned counsel for the petitioner, the relevant provisions of the Act may be noticed. In view of Section (3)(e) of the Act, unless the context otherwise requires, 'member' means a member of the Board and includes the chairman. S. 9 of the Act deals with the incorporation of the Board of Wakfs. Section 10 of the Act provides that the Board shall consist of eleven members and that there shall be a Chairman of the Board, who shall be elected by the members from congest themselves. Under S. 11 of the Act, he members of the Board shall be pointed by the State Government by a notification in the Official Gazette from any one or more of the categories of persons mentioned in this Section. S. 12 of the Act is as follows:--

'12. The members of the Board shall hold office for five years.

Provided that a member shall, notwithstanding the expiration of his term of office, continue to hold office until the appointment of his successor is notified in the Official Gazette.

Section 13 of the Act makes provisions for the disqualifications for being appointed or for continuing as member of the Board. Section 14 of the Act provides for the meetings of the Board. Sub-section (3) of this Section makes a provision that all questions which come before any meeting of the Board shall be decided by a majority of votes of the members present, and in the case of equality of votes, the Chairman or in his absence any other person presiding, shall have a second or casting vote. Section 15 of the Act prescribes the functions of the Board. Ss. 17 and 18 of the said Act are as follows:--

'17. The Chairman or any other member may resign his office by writing under his hand addressed to the State Government:

Provided that the Chairman or the member shall continue in office until the appointment of his successor is notified in the Official Gazette.

18(1) The State Government may, by notification in the Official Gazette, remove the Chairman of the Board or any member thereof if he--

(a) is or becomes subject to any disqualifications specified in S. 13; 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 to be prejudicial to the interests of the Wakf; or

(c) fails, without excuse sufficient in the opinion of the Board, to attend three consecutive meetings of the Board.

(2) Where the Chairman of the Board is removed under sub-section (1), he shall also cease to be a member of the Board.' Section 19 of the Act deals with the filling of a vacancy caused by the removal, resignation, death or otherwise, of a member of the Board under S. 22 of the Act, the Board will by a general or special order in writing, delegate to the Chairman or any other member or to the Secretary, any of its functions. S. 67 of the Act empowers the State Government to make rules to carry out the purposes of the Act; whereas S. 68 of the Act empowers the Board to make regulations, not inconsistent with the Act or the rules to carry out the functions under the Act with the previous sanction of the State Government.

(3) In view of the powers conferred under Section 67 of the Act, Rules called 'Punjab Wakf Rules 1964' have been framed. R. 6 of the said Rules which deals with the election of the Chairman is as follows:-- '6. After the appointment of members of a newly constituted Board is notified under S. 11, the Government shall, as soon as may be, fix by giving to the members not less than ten gear days notice a date for the first meeting of the Board. The notice shall state the time and place of the meeting as well the fact that at such meeting the Chairman should be elected. The meeting shall be presided over by a member chosen by the members from amongst themselves and shall be deemed to be Validly convened meeting. The election of the Chairman shall be recorded as part of the proceedings in the minutes of the meeting.'

4. The Board has also framed regulations called 'Punjab Wakf Regulations 1967'. Regulation 3 deals with the time of the meeting whereas Regulation 4 deals with the place of the meeting. Regulation 5 deals with the notice of meeting whereas Regulation 6 deals with the quorum and provides that quorum for a meeting of the Board shall be five, including the Chairman.

5. As regards the first argument that there is no power with the members of the Board to express lack of confidence in the Chairman once elected in the first meeting of the Board after its constitution under R. 6 of the Rules, we are inclined to hold that there is no merit in this contention. The arguments that siuce there is no specific power given to the members of the Board to express lack of confidence in the Chairman after he is elected in the first meeting of the Board and, therefore, such power should be taken to be non-existent, loses sight of the fact that in view of the provisions of Article 372(1) of the Constitution of India, part of the common law based on the roles of 'justice, equity and good conscience' as suited to the genius of this country is applicable in India. This was so held by their Lordships of the Supreme Court in Supdt. and Remembrancer of Legal Affairs State of West Bengal v. Corporation of Calcutta AIR 1967 SC 997. It is accepted principle of common law relating to the removal of the holder of an office that the body which has authority to elect its Chairman has the inherent and implied power to remove the Chairman. If the Chairman holds his office at pleasure, then he can be removed at will, but if he holds his office otherwise than at pleasure, he can be removed only for cause after notice and hearing In view of the principles of common law stated above, until and unless there is a provision in the statute barring the removal of the Chairman by a vote of no confidence it has to be held that the members who had the power to elect the Chairman have the power to remove the Chairman by a majority of votes. This principle is also enshrined in the provisions of S. 21 of the General Clauses Act, 1897. A body of persons which has the power to elect its Chairman, has the power to remove him until and unless there is any bar signified in the provisions of the statute itself. The view which we are taking finds ample support from a judgment of the Delhi High Court in Bar Council of Delhi v. Bar Council of India. New Delhi l, AIR 1975 Delhi 200. In that case, the Bar Counsel of Delhi framed a rule under S. 15 of the Advocates Act, 1961, which empowered the Bar Council to make rules to carry out the purposes of the Act. The provisions of S. 15(c) provided that the rules could be framed by the Bar Council regarding the manner of election of the Chairman and Vice-Chairman of the Bar Council, Under this power, the Bar Council framed a ro1e prescribing the procedure for calling a meeting for expressing no confidence against the Chairman and Vice Chairman of the Bar Council. The validity of this rule was challenged as it was contended that there is no power under the Act to pass a motion of no confidence a against the Chairman. Their Lordships of the Delhi High Court came to the conclusion that in view of the application. of common law principles and that there being no provision in the statute, barring the passing of the no confidence motion the Bar Council had the jurisdiction to frame a rule providing for the convening of a meeting for the purpose of passing no confidence motion against the Chairman of the Bar Council.

6. Mr. Sibal, learned counsel for the petitioner relies on a Division Bench decision of the Andhra Pradesh High Court in Venkata Narayana v. Deputy Registrar of Co-operative Societies, Eluru ILR (1975) Andh Pra 242, to contend that in case there is no express provision in the statute providing for passing of no-confidence motion, the said powers cannot be inferred as the Court cannot add or subtract anything to or from the statute. The learned counsel contends that since there is no provision in the Act for removal of the Chairman by the members of their expressing lack of confidence, therefore, the petitioner, who was duly elected Chairman, could not be removed. We have very carefully through this judgment and with all respects to the learned Judges, we are unable to agree with the view taken therein. The main stress in that judgment is on the principle that it is not the duty of the Court to stretch the words used by the Legislature to fill in gaps of omissions in the provisions of an Act. This principle is unexceptional but their Lordships did not consider the effect of the application of principles of common law as applicable in India in view of the provisions of Article 372(1) of the Constitution of India. That being so, we are of the opinion that the view taken in this judgment is not the correct view of the law of the land.

7. Equally there is no merit in the contention of the learned counsel for the petitioner that Chairman can only be removed under S. 18 of the Act and not otherwise. Taking into consideration the provisions of S. 18, it cannot be held that the Legislature intended to prohibit the removal of a Chairman by passing of No confidence Motion by the majority of the members of the Board. Section 18 deals with the powers of the Government to remove a member or Chairman as the case may be on having been found unfit to continue an a Member or Chairman, as the case may be in view of the disqualification incurred by him as prescribed. This is completely a different jurisdiction vested in the Government. From this, it is difficult to hold that the Legislature intended that the Chairman once elected, cannot be removed from the office of the Chairman.

8. We are also unable to agree with the contention of the learned counsel for the petitioner that in view of the provisions of S. 12 of the Act, the tenure of the office of the Chairman of the Board is five years. We have already reproduced the provisions of S. 12 of the Act in the earlier part of the judgment. It is no doubt true that in view of the provisions of S. 3(e) of the Act, wherever the word 'member' of the Board exists, it includes he Chairman. This is so unless the context otherwise requires. As is clear from the scheme of the Act and R. 6 that after the members are appointed under S. 11 of the Act the first meeting of the Board has to be convened by the Government as soon as possible by giving the members not less than 10 days clear notice and in that meeting the Chairman has to be elected. It would thus be seen that there will be some time gap between the date of nomination of the members and the election of the Chairman. The Chairman continues in office on the strength of his being a member of the Board. It is, therefore, obvious that the period of five year shall start from the date when the members are nominated by the Government under S. 11 of the Act; whereas Chairman is elected on some subsequent date. In view of what has been stated above, the Chairman, in no case, car there for complete period of five year. It will, therefore, be obvious that in of the scheme of the Act, the word 'member' used in S. 12 of the Act cannot held to include 'Chairman'. We therefore, of the opinion that the tenure of the office of the Chairman is not fixed for five years and the same is at pleasure of the members of the Board. For the reasons recorded above, we not find any merit in the first contention of the learned counsel.

9. As regards points Nos. 2 and 3, the learned counsel for the parties agree that the same are connected. If point No. 2 is decided in favour of the petitioner, the conclusions as regards point No. 3 shall follow. As is clear, there is no provision in the Act or the Rules framed thereunder and so also in the regulations, which deals with the procedure for convening a meeting for considering No confidence Motion against the Chairman. We have already come to the conclusion that in view of the principles of common law, as applicable in this country, the body which has the power to elect the Chairman has the power to remove him by majority. The question to be determined is as to what should be the procedure for convening a meeting of the members for consideration of No confidence Motion against the Chairman of the Board. R. 6 of the Rules prescribes the procedure for the election of the Chairman after the Board is newly constituted under S. 11 of the Act. Under this Rule, the Government has to fix a date for the first meeting by giving the members not less than ten days clear notice for electing the Chairman of the Board. Regulation 2 framed under S. 68 of the Act provides that the Board shall ordinarily meet once a month provided that the Chairman or at least four members may requisition a special meeting. Regulation 4 deals with the place of meeting; whereas Regulation 5 deals with the notice of the meeting. Under Regulation 5 the meeting of the Board shall be convened by the Secretary and the date of meeting shall be fixed by the Secretary in constitution with the Chairman. Regulation 6 provides for the quorum of five members, including the chairman for a meeting of the Board and it further provides g at for an adjourned meeting no quorum will be necessary. The reading of the Regulations mentioned above would show that the Regulations actually come into lay after the Chairman is elected in the first meeting after the constitution of the new Board under S. 11 of the Act. It would thus be seen that Rule 6 is the only provision which deals with the election of the Chairman and there is no other provision either under the Rules or in the Regulations which deals with the procedure for convening a meeting for the election of the Chairman of the Board. It is o doubt true that R. 6. strictly speaking, is applicable for convening first meeting of the Board, which is held after the constitution of the new Board under S. 11 of the Act. but since there is no provision prescribing the procedure for convening a meeting for considering the No Confidence Motion against the Chairman, in view of the principles as contained in S. 21 of the General pauses Act 1897, it would be legitimate to hold that the same procedure, which is followed for electing the Chairman of the newly constituted Board, shall be followed for considering the No confidence Motion against the Chairman and if the No confidence Motion is carried, for electing the new chairman. It may further be observed that R. 6 provides no quorum for the election of the Chairman. Since there is no provision of quorum as regards the meeting in which the Chairman has to be elected, in our view, the principles of common law would be applicable in this regard also. The Chairman has to be elected by a majority of the members of the Board. There are in all 11 members of the Board as constituted under S. 11 of the Act. It is, therefore, obvious that six members or more would be able to elect the Chairman. Similarly, the notion regarding want of confidence in the Chairman, can also be carried if six members vote for the motion.

The view we are taking that when there is no procedure prescribed for holding a meeting for considering the No Confidence Motion against the chairman, the provision of law regulating the election of the Chairman would be applicable in view of the principles as enshrined in the provision of S. 21 of the General Clause Act, 1897, finds support from a number of decisions of this Court. In Dharam Singh v. State of Haryana 1973 Pun LJ 554: (AIR 1974 Punj 99) it was held by a learned Single Judge of this Court that where no rule prescribes the manner in which a meeting of the Panches for the consideration of a No Confidence Motion against the Sarpanch is to be called and conducted, such a meeting shall also be held in the same manner in which the meeting for election of Sarpanch is to be held in accordance with Rr. 38 and 39 framed under the Punjab Gram Panchayat Act. In the Punjab Gram Panchayat Act, the Panches have been given right to recall a Sarpanch, but the Rules for convening such a meeting had not been framed. The learned Judge on the principles as contained in S. 21 of the General Clauses Act, 1897, came to the conclusion that the same procedure which is followed for holding a meeting for electing a Sarpanch, shall be followed for considering the motion of No Confidence against a Sarpanch. This view was affirmed by a Division Bench of this Court and appeal against the order of the learned Single Judge was dismissed Reference may be made to Dharam Sm v. State of Haryana 1974 Pun LJ 365. Again in Jee Ram v. Director of Panchayats, 1974 Pun LJ 527 a learned single Judge of this Court held that the same procedure as is followed for the election of a Sarpanch, has to be followed for considering the No Confidence Motion against the Sarpanch in the absence of there being a specific rule in this regard under the Punjab Gram Panchayat Act. In Hardatt Singh v. Block Development and Panchayat Officer, 1975 Pun LJ 449: (AIR 1976 Punj and Har 122) another Division Bench of this Court affirmed the same view. In that case, in a meeting held for considering the No Confidence Motion against the Sarpanch the votes were cast by show of hands and not by secret ballot as provided under the Rules for electing the Sarpanch. No Confidence Motion carried against the Sarpanch in such a meeting was quashed and it was held that the same procedure had to be followed as is followed in the election of the Sarpanch in the absence of any. Rule specifically dealing with the procedure to be followed for convening a meeting for considering No Confidence Motion against the Sarpanch.

10. As already observed, the Regulations, reference to which has already been made come into operation after the Chairman is elected hi the first meeting of the newly constituted Board. The same cannot be made applicable for convening a meeting of the members of the Board for considering motion of want of confidence against the Chairman. Otherwise also keeping in view the larger public policy, it would not be proper to hold that meeting convened in accordance with the provisions of the Regulations can validly consider the motion of No Confidence against the Chairman and consequently can also elect a new Chairman. If he Regulations are held to be applicable, a quorum of five members has been fixed under the Regulations and for an adjourned meeting there is no quorum. If the meeting is held in accordance with the Regulations, then five members of the Board can meet and decide about the fate of the Chairman and at an adjourned meeting even one member can decide about the removal of the Chairman anl can himself declare as elected Chairman of the Board.

As is clear from the various provisions of the Act, the Government is the appointing authority of all the eleven members of the Board. The members of the Board are nominated and not elected. The Government has the power to remove the Chairman or the Member of the Board in accordance with the provisions of Section 18 of the Act. The Board under the Act has to perform very important functions dealing with the property of Wakfs and to administer the Wakfs funds. It is in the fitness of things keeping in view the larger public poli6y as well that a meeting, which has to consider the motion of No Confidence against the Chairman should be convened by the Government and if the motion of No Confidence is carried, the members in the same meeting may be able to elect a new Chairman in accordance with Rule 6. If the meeting is convened under the regulations, firstly, the Chairman himself against whom the No Confidence Motion may have to be considered may be a hindrance in convening such a meeting as under the regulations it can be convened by the Secretary in consultation with the Chairman: Secondly, the decision taken in such a meeting, in view of the party factions prevailing, may be disputed by one faction or the other. It would thus be seen that in law as well as keeping in view the larger public policy, it has to be held that a meeting for consideration of motion of No Confidence against the Chairman has to be convened in accordance with Rule 6, which Rule is applicable for convening a meeting for the election of the Chairman after the Board is newly constituted.

11. Under S. 17 of the Act a Chairman or any member may resign from his office. According to the proviso to this section the Chairman or the member, as the case may be, shall continue in office until the appointment of his successor is notified in the official Gazette. This provision would give an indication that if a Chairman resigns from his office, he shall continue to be Chairman till the appointment of a successor is notified by the Government in the official Gazette. This provision thus gives an indication that even in the case where a Chairman resigns, the Government comes into picture. and until the Government notifies the election of the Chairman in the official Gazette, the Chairman who tenders resignation (sic) taken finds support on the analogy of the principles as enshrined in S. 17 of the Act.

12. It would thus be seen that from every angle, it is safe to hold that the meeting for considering No Confidence Motion against the Chairman should be convened by the Government in accordance with Rule B of the Rules If the majority of the members approach the Government for convening such a meeting, the Government is duty bound to convene such a meeting in accordance with R. 6 within a reasonable time of the submission of the requisition. No Confidence Motion bas to be considered in such a meeting and if the same is carried by a majority of six or more members, a new Chairman has to be elected in the same meeting. 1n the present case the meeting was convened under the Regulations by the Secretary and was not convened in accordance with the provisions of R. 6.

Since we have come to the conclusion that for the removal. of the Chairman, same procedure as is applicable for election of the Chairman under R. 6 is to be followed, therefore, the removal of the petitioner vide resolution of the Board dated Jan. 20, 1980, copy of which is Annexure `p-4' with the writ petition, and the subsequent election of respondent No. 3, Khwaja Khalil Ullah, as Chairman, is without jurisdiction. We may make it clear that in the same meeting the members withdrew certain powers of the Board from the petitioner and delegated the said powers to Mohd. Yamin Khan and Khalil Ullah Saheb. This resolution of the Board is in keeping with the provisions of S. 22 of the Act and therefore no fault can be found with this resolution of the Board. The net result of our findings is that the removal of the petitioner from the Chairmanship of the Board and the consequent election of respondent No. 3 Khwaja Khalil Ullah as Chairman is held to be without jurisdiction, and that part of the resolution of the meeting of the Board on Jan. 20, 1980, is quashed. If the majority of the members make a representation to the Government for convening a meeting u accordance with R. 6, the Government is directed to convene such a meeting in accordance with the said Rule within 10 days of the receipt of such representation, for considering the No Confidence Motion and if the No Confidence Motion is carried by a majority of 6 or more members, then the members present shall be free to elect a new Chairman in the same meeting b a majority of votes. We order accordingly.

13. Before parting with the judgment ft may be observed hat the contention of Mr. Jagan Nath Kaushal, the learned counsel for respondent No. 1, that the petitioner is not entitled to any relief in this petition as he himself participated in the meeting wherein the No Confidence Motion was passed and the new Chairman was elected, is without any merit. In the resolution itself, copy of which is Annexure p-4 with the writ petition, the petitioner protested that the members have no power to pass No Confidence Motion against him as there is no power in the Act and the Rules to do so. It would thus be seen that at no stage the petitioner acquiesced #o the challenge made to his position as Chairman and his mere presence in the meeting would not disentitle him from claiming the relief from this Court, especially when he protested that the members had no jurisdiction to pass No Confidence Motion against him.

13-A. The writ petition is allowed in the terms mentioned above, with costs.

ORDER

14. An oral prayer has been made on behalf of respondent No. 3 for grant of certificate for leave to appeal to the Supreme Court. We do not find any ground for the issuance of requisite certificate. The prayer is declined.

15. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //