1. This application had originally been filed by three persons who were members of the Bihar Subai Sunni Majlis-e-Awqaf. Opposite party No. 11 Syed Mazhar Imam, however, has since been transposed to the category of petitioner and has been numbered as petitioner No. 4. It may be stated that this Majlis came into existence as a second Majlis under the Bihar Waqfs Act of 1947, being Bihar Act VIII of 1948. Section 8 of the Act contains the provision in regard to the constitution of the Majlis and it provides under sub-section (1), Clause (a), that out of the members of the Majlis to be constituted, two will be appointed by the State Government. It is stated by the petitioners that the notification dated the 4th March, 1967, issued by the State of Bihar contained the names of opposite party Nos. 10 and 11 (Md. Mazhar Hussain and Syed Mazhar Imam) as members of the Majils appointed by the Government. It may be stated that the old Sadar also fixed the 2nd of April, 1967, as the day for the meeting of the Majlis for electing a new Sadr. Before, however, the meeting could be held, a second notification was issued on the 21st March, 1967, (annexure C), promulgated and published in the Bihar Gazette, replacing opposite party Nos. 10 and 11 by opposite party Nos. 2 and 3 (Syed Manzar Imam and Md. Yunus). The present application was accordingly filed on the 9th of May, 1967, challenging the validity of the notification, annexure G it may be stated in passing that on the 18th of May, 1967, a third notification was issued by the Government (annexture E) removing Syed Manzar Imam (opposite party No. 2) and appointing in his place Md. Tahir (opposite party No. 13).
2. The grievance made by the petitioners, who are members of the Majlis, is that they have an interest in the Majlis being properly constituted and as such they can challenge the validity of the order of the Government in removing opposite party Nos. 10 and 11 who were duly appointed under Section 8(1)(a) of the Act. Reference is made in this connection to Section 8 of the Act which provides for the manner in which the Sadr and the other members of the Majlis will be elected or appointed together with their term of office. Section 14 of the Act provides for the removal of the Sadr and members. Section 14 runs as follows:—
“14 Removal of Sadr and members: The State Government may remove from office—
(i) the Sadr or any member, if the Sadr or such member—
(a) is or becomes subject to any of the disqualifications specified in Section 9; or
(b) refuses to act or becomes 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 interest of Majlis;
(ii) the Sadr, if he fails, without an execuse which is in the opinion of the State Government sufficient, to attend two consecutive meetings of the Majlis, and
(iii) any member, if he fails, without an execuse which is in the opinion of the State Government sufficient, to attend three consecutive meetings of the Majlis.”
3. There is no provision in the Act for removal of the Sadr or members of the Majlis once they come to hold that office in due course. The contention of learned Counsel is well founded.
4. Mr. K.P Verma, for the State of Bihar, has, however drawn our attention to Section 19 of the Bihar and Orissa General Clauses Act, 1917 (Bihar and Orissa Act 1 of 1917), which corresponds to Section 16 of the Central General Clauses Act which provides thus:—
“Where, by any Central Act or Regulation, a power to make any appointment is conferred, then unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.”
5. His contention is that this section makes it clear that Government had the authority to cancel the notification appointing opposite party Nos. 10 and 11 as members of the Majlis. The argument of Mr. Verma however, cannot be accepted as valid. Section 19 of the Bihar and Orissa General Clauses Act while providing for the power of suspension or dismissal of a person appointed by Government also states that this is so unless a different intention appears. This different intention may be gathered with reference to any enactment, rule or regulation having a bearing on the appointment of the person concerned. In the present case, Section 14 of the Bihar Waqfs Act itself provides that a member may be removed only in the circumstances mentioned in that Section.
6. Mr. Verma has not urged in support of the action of the State Government in annexure C that there was anything done by opposite party Nos. 10 and 11 which would attract the application of S. 14. Their removal therefore, is an act which could be justified only if Government had the power to cancel the appointment without any particular ground for doing so at its option, pure and simple. Since as we have already held Section 19 provides that “unless a different intention appears”, and in the present case that different intention has been expressed in Section 14 itself, the notification cancelling the appointment of opposite party Nos. 10 and 11 must be struck down. It may be stated that this conclusion is supported by the decision of the Rajasthan High Court in the case of Kanta Devi v. State of Rajasthan, AIR 1957 Raj 134 where with reference to Section 9 of the Rajasthan Town Municipalities Act, Government nominated certain persons as members of the Board. Government, however, changed its mind and cancelled the nomination without following the procedure under Section 14 of the Act. In that context Section 16 of the Central General Clauses Act as also Section 21 of that Act had to be considered, because the argument advanced in support of the Government's action in that case also was that if Government had the power to nominate, it would also have the power of cancel the nomination, at least, in the circumstances which had cropped up in that case, i.e, before the first meeting of the Municipal Board. The contention was repelled by their Lordships Wanchoo, C.J and Dave, J. and it was held that it was not so because Section 14 of the Act provided the procedure to be followed in removing a member of the Municipal Board, Section 14 of the Bihar Waqfs Act also corresponds to Section 14 of the Rajasthan Town Municipalities Act (23 lot 1951). The facts of the present case, therefore, are very similar to the facts of the Rajasthan case. In the circumstances, therefore, it must be held that the notification issued by Government (annexure C) is invalid and must be quashed.
7. Prayer is made also that annexure E should be quashed inasmuch as it says that in supersession of the notification dated the 4th of March, 1967, this notification is being issued. This notification has to be quashed automatically because if the appointment of oppotise party Nos. 10 and 11 (No. 11 since transposed to the category of petitioner) is upheld, the appointment of opposite party Nos. 2 and 3 cannot stand.
8. Even in regard to the use of the word “supersession”, the notification is bad inasmuch as annexure A has been held to be valid and no subsequent notification superseding it can be held to be operative. To avoid any doubt, it may also be mentioned that since the appointment of opposite party Nos. 2 and 3. (Syed Manzar Imam and Md. Yunus) has been held to be invalid, the appointment of Md. Tahir in place of Syed Manzar Imam must also fell to the ground.
9. The application stands allowed accordingly.
TVN/D.V.C
10. Petition allowed.
Comments