Management Committee of Waqf Nos. 6 and 7, Jama Masjid Haldwani (Nainital) v. State of Uttarakhand

Mr. T.A. Khan, Advocate for the petitioners. Mr. K.P. Upadhyay, Addl. C.S.C. for the State-respondent No.1 and 3. Mr. D. Barthwal, Advocate for the respondent No.2 Date: - 23-03-2010 Hon(cid:146)ble B.S. Verma J. Heard learned counsel for the parties and perused the record. 2 On 22-03-2010, the record of the Election of members of the Uttarakhand Waqfs Board was summoned by this Court to verify the fact whether the opportunity of hearing was given to the petitioners before deleting his name from the voter list or not. Learned Additional C.S.C. has submitted that the writ petition be disposed of without inviting the counter affidavit. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari for quashing the notice dated 18-03-2010 issued by the respondent No. 3 annexed as annexure No.1 to the writ petition whereby the election of members of respondent No. 2 was notified and it was further prayed that in the nature of mandamus directing the respondents to include the names of the petitioners nos. 1 and 2 in the voter list of the Mutawallies having the income of Rs. 1 lakh and above for the election of membership among the Mutawallies in Uttarakhand Waqf Board, as per Section 14 (1) (b)(iv) of the Waqf Act,

#1995. Learned counsel for the respondent No.2 has informed the Court that the period of Committee of Management of petitioner No.2 had elapsed. In view this fact, the learned counsel for the petitioners is not pressing the relief for the petitioner No.2 at this stage. The grievance of the petitioner No.1 is that the name was shown in the tentative list annexed as annexure No.2 to the writ petition at Serial No.15 for Waqf Nos. 06 and 07, Jama Masjid, Haldwani, District Nainital but in the 3 final voter list and in the impugned notice, the name has not been shown. On the basis of the instructions received, the learned Addl. C.S.C. has stated that one Sri Syed Rais Mian has filed objection and on the basis of objection the name of the petitioner No.1 was deleted from the voter list. By a perusal of record summoned, it is obvious that the order dated 18-03-2010 has been passed by the respondent No.3 on the basis of the objection, it reveals that no notice was given to the Waqf Nos. 6 and 7 and without giving opportunity of hearing, the name of the Waqf has been deleted from final voter list. If some objections were filed. The respondent No.3 ought to have given the notice to the petitioner No.1 and after giving opportunity of hearing, the order could have been passed. The learned counsel for the petitioner drew attention of this Court to Rule 6 of the Uttar Pradesh Shia Central Wakf Board and Uttar Pradesh Sunni Central Wakf Board Conduct of Election Rules, 1997 (hereinafter referred to as (cid:145)Act(cid:146)). Rule 6 is quoted below:- (cid:147) Filing of objections (1) Any person aggrieved by such publication may file the objection petition before the concerned Election Officer within three days of such publication, for addition, deletion or modification of any name. (2) The Election Officer after going through the objection petition, and after obtaining any further information from any source, as he may deem fit and after giving personal hearing to the objection petitioner and person concerned or to any other person, if he feels necessary and shall pass orders on the objection petition. 4 (3) In the light of the orders passed under sub-rule (2), if the Electoral Roll requires, any modification the Election Officer after incorporating such modification, shall publish the final Electoral Roll not less than two days before the date of Election notified under sub-rule (2) of Rule 7 and such Electoral Roll shall be final and conclusive list of Electors for Election notified under sub-rule (2) of Rule 7.(cid:148) By a perusal of Rule 6 of the Act provides that from displaying of the list, the person aggrieved may file objections before the concerned Election Officer within three days of such publication for addition, deletion or modification of any name. Sub Rule 2 of Rule 6 of the Act provides that if the Election Officer after going through the objection petition, and after obtaining any further information from any source, as he may deem fit and after giving personal hearing to the objection petitioner and person concerned or to any other person, if he feels necessary and shall pass orders on the objection petition. By a perusal of the record/order, it reveals that this fact is not disputed and no opportunity of hearing was given to the person concerned i.e. petitioner No.1 whose name was deleted from the voter list. It is pertinent to mention here that although the Rule is directory in nature but no such finding was recorded that hearing of petitioner No.1 was not necessary. The order whereby the name of the petitioner No.1 was deleted has been passed in violation of principle of natural justice and fair play. In the facts and circumstances of the case, since the matter pertains to Election and being urgent in nature, the writ petition is disposed of with a direction that the 5 respondent No.3 to provide a personal hearing to the petitioner No.1 as well as the objector and pass fresh order after giving reasonable opportunity of hearing for deletion or inclusion of the name of the petitioner No.1 and then to pass appropriate order for re-scheduling the Election. With the said direction and observation, the writ petition is allowed. The notice dated 18-03-2010 issued by the respondent No.3 annexed as annexure No.1 is hereby quashed. The Election Officer shall start the Election proceedings de-novo as fresh after taking decision on the objection as directed above. Interim Relief Application stands disposed of accordingly. MK (B.S. Verma, J.) 23-03-2010