1. The dispute in all the writ petitions arises from one and the same transaction of registration of Masjid & Azakhana /Imambara situate in Mohalla Bagla, Amorha, District Jyotibaphule Nagar as wakf before the U.P. Shiya Central Board of Wakf Lucknow, therefore, all the three writ petitions are taken up together.
2. The facts of the writ petition No. 28001 of 2007 (Ali Makin Naqvi v. U.P. Shiya Central Board of Waqf and Ors.:
The petitioner in the present case applied for registration of Masjid and Azakhana/Imambara as Wakf before respondent No. 1 i.e., U.P. Shiya Central Board of Wakf Lucknow (hereinafter referred to as Board) on 01.02.2003. The respondent No. 3 i.e., Wali Haider filed an objection on 16.02.2004 stating therein that the Imambara and Masjid were constructed by Sri Daad Ali his ancestor and the same is being maintained and managed by his family members. In his submissions the Imambara and Masjid mentioned in different Wakf are already registered and there is no question of new registration of Masjid and Imambara now. It was further alleged that only one room and house was to be included in Imambara and to that effect application had already been given by him on 03.12.1997 for registration.
3. The respondent No. 1 after considering the case of the petitioner and the respondent No. 3 has allowed the application of the petitioner by a detailed order dated 05.07.2004 and also appointed the petitioner as Mutwalli of the Wakf for a period of three years.
4. The respondents No. 3, 4 & 5 aggrieved from the aforesaid order have filed a Civil Misc. Writ Petition No. 4622(M/B) of 2004 at Lucknow Bench of this Court challenging the order dated 05.07.2004 and the order dated 23.10.2003 by which the Administrator was appointed. In that writ petition counter affidavit was filed by the petitioner as well as by the Board. In fact in the counter affidavit, the Board has justified the earlier order passed on 05.07.2004.
5. Pending aforesaid writ petition the respondent No. 4 moved an application without any supporting affidavit or evidence on 05.01.2005 before respondent No. 1 to recall and set aside the order dated 05.07.2004 and allow the application dated 03.12.1997. The grounds for recalling the order dated 05.07.2004 as stated in the application are as under:
(a) Because the order dated 05.07.2004 is without jurisdiction as the same has been passed by the Administrator who was appointed as Administrator by the State under Section 102 of the Wakf Act 1995 (hereinafter referred to as the Act) and not under Section 99(1) of the Act, since under Section 102 of the Act, the State Government is not competent to appoint Administrator therefore, the order dated 05.07.2004 is without jurisdiction.
(b) Because the aforesaid order has been obtained by misleading the Administrator after concealing the material facts.
6. The prayer was also made for staying the operation of the order dated 05.07.2004 and appointing the applicants (respondents No. 3 to 5) as Mutwalli of the said wakf for three years.
7. It appears that Chairman of the Board has passed an order on 07.01.2005 staying the operation of the order dated 05.07.2004 till further orders. The petitioner came to know about the aforesaid application and order on 13.01.2005 and immediately thereafter he filed an objection on 19.1.2005 on the following grounds:
(i) Because the applicants (respondents No. 3 to 5) have already filed Civil Misc. Writ Petition No. 4622 (M/B) of 2004 at Lucknow Bench of this Court challenging the order dated 05.07.2004 in which counter affidavits have already been filed by the petitioner as well as by the Board and the writ petition is still pending therefore, no fresh application is maintainable.
(ii) Because under the Act there is no power of review therefore, the application is not maintainable.
(iii) Because the order dated 05.07.2004 was passed on merit after hearing both the parties and considering their version in detail. It has already been notified in U.P. Gazette on 06.11.2004 and pursuant thereto the petitioner is functioning as Mutwalli. Therefore, the order dated 07.01.2005 could not be passed without hearing the petitioner.
(iv) Because the order dated 07.01.2005 is an out come of the pursuation of respondent No. 3 who has now become Member of the Board, as well as Member of Judicial Committee also of which Incharge, Sri Hasan Ibrahim has passed the impugned order, therefore, the same is not sustainable.
8. It appears the respondent No. 3 has moved an application on 01.02.2005 for withdrawing the writ petition No. 4622 (M/B) of 2004 after obtaining the order on 07.01.2005. The said application was pending before the Lucknow Bench of this Court till judgment was reserved in this writ petition.
9. The Member Incharge of Judicial Committee Sri Hasan Ibrahim of the Board has allowed the application of respondent No. 3 dated 05.01.2005 for recalling the order dated 05.07.2004 on 11.5.2007. While doing so, he has also allowed the application of respondent No. 3 dated 03.12.1997 for registration of wakf and rejected the petitioner's application dated 01.02.2003 for registration of Masjid and Azakhana/Imambara as Wakf. The operative portion of the order dated 11.5.2007 is quoted below:
The order dated 05.07.2004 passed by the then Administrator Shiya Central Board of Wakf is hereby recalled and the application dated 03.12.1997 moved by Sri Wali Haider is allowed whereas the application dated 23.12.2002 moved by Syed Ali Makin Naqvi is hereby rejected.
So far the management of newly created wakf is concerned the present management shall continue to manage and control its affairs till the new Mutawalli is appointed by the Board in accordance with law. The office is directed to act accordingly.
10. Hence the present writ petition. The main grounds of challenge to this order are as under:
(a) Because the order dated 05.07.2004 was an order passed on merit after hearing both the sides and the application of the respondent No. 3 dated 03.12.1997 for registration of Masjid and Azakhana /Imambara as Wakf was also taken into consideration, therefore, it was not open for reappraisal by the Member Incharge of the Judicial Committee of the Board while dealing with the recall application. In fact, the Member Incharge has exercised Appellate power which he lacks.
(b) Because there is no power of Review under the Wakf Act, therefore, the order dated 11.05.2007 is without jurisdiction.
(c) Because the order dated 11.5.2007 was passed without application of mind as the petitioner's objection specifically pointing out the pendency of the writ petition No. 4622 (M/B) of 2004 on the instance of respondent No. 3 challenging the order dated 05.07.2004 was not taken into consideration. In fact, the act of the respondent No. 3 is fraudulent act as application dated 05.01.2005 itself do not disclose the filing of writ by them before Lucknow Bench of this Court.
(d) Because the respondent No. 3 after lapse of time became member of the U.P. Shiya Central Board of Wakf in the year 2004 and later became Member of Judicial Committee of which Sri S.H. Ibrahim was Member/Incharge therefore, the order passed by the Member Incharge of the committee is vitiated being biased one.
11. Two counter affidavits have been filed one on behalf of respondents No. 3 and 4 through Sri M.A. Qadir, Advocate. Another on behalf of respondent No. 1 through Sri Haider Husain.
12. Sri Wali Haider, respondent No. 3 has filed the counter affidavit on his behalf as well as on behalf of respondents No. 4 & 5 in which factual dispute has been detailed with regard to construction of Masjid, Azakhana/Imambara and its registration. It is also stated in paragraphs 15 & 16 of the counter affidavit that the petitioner's earlier application for registration of Masjid and Azakhana/Imambara as wakf has been rejected on 25.4.1995 and the Review of the aforesaid order was also rejected by the then Controller on 03.10.1998. Prior to that the respondent No. 3 (Sri Wali Haider) has moved an application for registration on 03.12.1997 and it is thereafter the petitioner has filed the application for registration of Masjid, Azakhana/Imambara as a wakf on 01.02.2003.
13. The pendency of the writ petition No. 4622 (M/B) of 2004 challenging the order dated 05.07.2004 at Lucknow Bench of this Court has also been admitted. It is also averred in paragraph 33 of the counter affidavit that against the order dated 07.01.2005 staying the operation of the order dated 05.07.2004 the petitioner has filed writ petition No. 666 of 2005 before Lucknow Bench of this Court which has been connected with the writ petition No. 4622 (M/B) of 2004 and the same is pending. It is also alleged that vide resolution dated 26.9.2005 the Board has directed to decide the present dispute/restoration application by the Judicial Committee of the Board. In the last, it has been averred in paragraph 42 of the counter affidavit that the order dated 11.5.2007 is valid order and has been passed in accordance with law and the writ petition be dismissed.
14. Likewise in the counter affidavit of the Board sworn by Sri Zafar Sajjad, it is stated in paragraph 4 of the counter affidavit that the writ petition is not maintainable against the impugned order dated 11.5.2007 as the petitioner has got an alternative remedy under Section 83(2) of the Wakf Act 1995. It is also stated in paragraph 5 of the counter affidavit that the petitioner's earlier application for registration of Masjid and Ajakhana as wakf and his appointment as Mutawalli was rejected and the review against that order was also rejected on 03.10.1998. Therefore, there is no illegality in recalling the order dated 05.07.2004. The Board has supported the order dated 11.05.2007 by saying that the order has been passed in accordance with law.
15. The facts of the writ petition No. 54500 of 2007 (Syed Khalil Mujtaba and 2 Ors. v. Shiya Central Board of Waqf and 2 Ors.:
This writ petition has been filed with the following prayers:
(i) Issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 1 and 2 to decide the application of the petitioners dated 04.06.2007 (Annexure No. 6) as well as the application of the respondent No. 3 dated 27.6.2007 (Annexure-5) after hearing the parties and pass a reasoned order in accordance with law.
(ii) Issue any other writ, order or direction in suitable nature which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
16. The application dated 04.06.2007 has been filed by the petitioners in this writ petition and respondents No. 3 to 5 in writ petition No. 28001 of 2007 for implementation of the order dated 11.5.2007 and the disposal of the application dated 27.06.2007 which was for compliance of the interim order of this Court passed in Writ Petition No. 28001 of 2007, against the order dated 11.5.2007. In this writ petition the Bench presided over by Hon'ble Dr. B.S. Chauhan, J. and Hon'ble Arun Tandon J, has been pleased to pass the following order on 05.11.2007.
The relief prayed for in the writ petition has been confined to the disposal of the applications made by the petitioner dated 04.06.2007 and 27th June, 2007, said to be pending before Shiya Central Board of Wakf.
In the facts and circumstances of the case, we dispose of this writ petition requesting the respondent Nos. 1 and 2 to consider and decide the applications of the petitioner expeditiously, preferably, within four weeks from the date of filing a certified copy of this order before them.
17. In this writ petition the respondent No. 3 Sri Ali Makin Naqvi, the petitioner in Civil Misc. Writ Petition No. 28001 of 2007 was not heard.
18. Therefore, he has filed an application for recalling of the order dated 11.5.2007. The said application is still pending.
19. The facts of the writ petition No. 1091 of 2008 (Ali Makin Naqvi v. U.P. Shiya Central Board of Waqf and Ors.):
This writ petition has been filed with the following prayers:
Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 24.12.2007 passed by respondent No. 2. (Annexure No. 1)
Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 24.12.2007 passed by respondent No. 2. (Annexure No. 1).
Issue any other writ order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
20. It appears after the order dated 05.11.2007 passed by this Court in writ petition No. 54500 of 2007 for disposal of the application of respondents No. 3 to 5 dated 04.06.2007 for implementation of the order dated 11.05.2007, an application was moved by the respondents along with the order of this Court dated 05.11.2007 for disposal of the application dated 4.6.2007 and 27.6.2007. Thereafter the order impugned in this writ petition dated 24.12.2007 has been passed by the Member of Wakf Board. By this order a direction has been issued for registration of Masjid and Azakhana/Imambara as a Wakf pursuant to the application of respondent No. 3 dated 03.12.1997 and further appointing Sri Wali Haider as Mutwalli, Sri Khalil Muztaba and Sri Mohd. Ali as member for a period of three years. The order dated 24.12.2007 has been challenged on following grounds.
(a) Because the order impugned suffers from breach of principle of natural justice as the said order has been passed without affording proper opportunity of hearing to the petitioner.
(b) Because the order impugned has been passed on the basis of order dated 11.05.2007 which is still subjudice before this Court in writ petition No. 28001 of 2007 in which an interim order is operating.
(c) Because the order impugned is also vitiated on the ground that it has been passed on the instance of respondent No. 3 who himself is member of judicial committee of Wakf Board which has passed the order dated 11.05.2007.
21. Two counter affidavits have been filed one by the Board the respondents No. 1 & 2 sworn by Sri Zafar Sajjad, legal assistant of the Board and another on behalf of respondents No. 3,4 & 5 through Sri Narendra Mohan, Advocate. This counter affidavit is sworn by Mohd. Ali, respondent No. 5.
22. In the counter affidavit of the Board, it is stated that there was no impediment in passing the order dated 24.12.2007 as the order dated 09.7.2007 passed in writ petition No. 28001 of 2007 has left open to appoint the Mutwalli in accordance with law and there is no order for staying the order dated 11.5.2007. It is also stated that the order dated 05.07.2004 is without jurisdiction, hence the order dated 11.5.2007 has rightly been passed in accordance with law. Further setting aside an order do not amount to review as the order dated 05.07.2004 has been set aside through order dated 11.5.2007, therefore, the plea of the availability of power of review is not tenable. Further this Court has already directed through order dated 05.11.2007 to the Board to dispose of the applications of the (respondents No. 3, 4 & 5) within a period of four weeks, therefore, there was no impediment in passing the order dated 24.12.2007.
23. The respondents No. 3, 4 & 5 have stated in their counter affidavit that the writ petition against the order dated 24.12.2007 is not maintainable as the petitioner has got an alternative remedy under Section 83(2) of the Wakf Act. It is also stated that Sri S.A.A. Rizvi, I.A.S. was illegally appointed as an Administrator, therefore, the order dated 05.07.2004 was without jurisdiction. Further the term of the petitioner as Mutwalli pursuant to the order dated 05.07.2004 has already expired on 04.07.2004, therefore the petitioner has no locus standi to challenge the order dated 24.12.2007. In short the respondents No. 3,4 & 5 have justified the order dated 24.12.2007.
24. We have heard learned Counsel for the parties. When the judgment was reserved learned Counsel for the parties were requested to submit their written submissions. Pursuant thereto only petitioner has filed written submissions and other respondents have not filed their written submissions.
25. Since the writ petition No. 28001 of 2007 Ali Makin Naqvi v. U.P. Shiya Central Board of Wakf and Ors. has been filed prior in time, therefore, the same is being taken up first.
26. As we have noticed under the heading of the facts of the case that the order dated 11.05.2007 has been challenged on number of grounds but to our mind the writ petition can be decided only on three main points:
(i) Whether the writ petition should be dismissed on the ground of availability of alternative remedy.
(ii) Whether the impugned order dated 11.5.2007 amounts to review of the order dated 05.07.2004 and the Member Incharge of the Judicial Committee was competent to pass the order impugned in the writ petition.
(iii) Whether the order dated 11.05.2007 is hit by principle of bias.
Point No. 1:
There is no absolute bar to entertain the writ petition under Article 226 of the Constitution of India where the alternative/statutory remedy is available. The decisions on this point are both ways. In some cases Hon. Apex Court has held that even if statutory remedy has not been exhausted even then the court can entertain writ petitions under Article 226 of the Constitution of India, if the order has been passed in violation of principle of natural justice or without jurisdiction. In some cases Hon. Apex Court has held that if the statutory remedy is available then courts should not entertain the writ petitions. The legal position as discussed in the numerous cases is somewhat like this:
The issue of exhausting statutory remedy has been considered time and again by the Hon'ble Supreme Court in K.S. Rashid & Sons v. Income Tax Investigation Commission and Ors. : [1954]25ITR167(SC) wherein it has been held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. The said power is limited. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. Similar view has been reiterated by the Apex Court in Sangram Singh v. Election Tribunal, Kotah and Anr. : [1955]2SCR1 , holding that the power of issuing writs are purely discretionary and no limit can be placed upon that discretion. However, the power can be exercised alone with recognised line and not arbitrary and the Court must keep in mind that the power shall not be exercised unless substantial injustice has ensued or is likely to ensue and in other cases the parties must be relegated to the courts of appeal or revision to set right mere errors of law which do not occasion injustice in a board and general sense.
Again a Constitution Bench of the Hon'ble Supreme Court, in Union of India v. T.R. Varma : (1958)IILLJ259SC , held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. The Apex Court held that existence of an another remedy does not affect the jurisdiction of the Court to issue a writ; but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such remedy is exhausted, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds therefor.
Yet another Constitution Bench of the Hon'ble Supreme Court, in State of U.P. and Ors. v. Mohammed Nooh AIR 1958 SC 86, considered the scope of exercise of writ jurisdiction when remedy of appeal was there and held that writ would lie provided there is no other equally effective remedy. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of fundamental principles of justice, therefore, in a proper case, powers of writ can be exercised, but should not be exercised generally where other adequate legal remedy is available through it may not be, per se, a bar to issue a writ of prerogative.
27. In the State of Bihar and Ors. v. Jain Plastics & Chemicals Ltd. : AIR2002SC206 , the Apex Court held that existence of alternative remedy does not affect the jurisdiction of the writ court but it could be a good ground for not entertaining the petition.
28. In U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr. : (2005)8SCC264 , the Hon'ble Supreme Court re-considered almost all of its earlier judgments on issue and came to the conclusion as under:
An application for certiorari has however this advantage that it is speedier and cheaper than the other methods and in a proper case therefore it may well be right to allow it to be used.... I would, however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law.
29. Similar view has been taken in Seth Chand Ratan v. Pandit Durga Prasad AIR 2003 SCW 3078.
30. In the present case it is noticeable that the respondents No. 3 to 5 have already filed writ petition No. 4622 (M/B) of 2004 before the Lucknow Bench of this Court challenging the order dated 05.07.2004 which has now been recalled vide order dated 11.5.2007 which is order impugned in this writ petition, whereas there was remedy available for them under Section 83(2) of the Wakf Act 1995. Now this does not lie in the mouth of respondents No. 3 to 5 to raise this plea otherwise also this is a matter of discretion of the Court and looking to the facts and circumstances of the present case and considering the power of the Board to review or recall of the order dated 05.07.2004 (which will be dealt with in the later part of the judgment), the plea of availability of the alternative remedy is over ruled.
Point No. 2:
31. The order dated 05.07.2004 was passed after hearing the petitioner as well as respondents No. 3,4 & 5, the order runs almost in 10 pages and the application of respondent No. 3 dated 03.12.1997 for registration as wakf has also been taken into consideration. The respondents have already preferred a writ petition No. 4622 (M/B) of 2004 before the Lucknow Bench of this Court in which counter affidavit was filed and the matter was seeking judicial attention of this Court. All the possible objections were raised by respondents No. 3,4 & 5 to the application of the petitioner dated 01.02.2003 for registration of the Masjid and Azakhana/Imambara as a wakf, therefore it has to be seen that under what provision of law and under what ground the respondents have filed the application dated 05.01.2005 for recalling the order dated 05.07.2004 and consideration of their application dated 03.12.1997.
32. We have gone through the contents of the application dated 05.01.2005 filed for recalling of the order dated 05.07.2004 and from perusal of the same it transpires that the same has been filed challenging the merit of the order by saying that the then Administrator who has passed the order dated 05.07.2004 was not competent to pass such order as his appointment as Administrator was without authority. Further an application dated 03.12.1997 on the instance of respondent No. 3 was not decided while passing the order dated 05.07.2004. In fact on this very ground the writ petition challenging the aforesaid order was filed before Lucknow Bench of this Court and the matter was under active consideration and in the meantime order impugned in the present writ petition has been passed. In fact the respondents have not disclosed the pendency of the writ petition before the Board while filing the application for recalling the order dated 05.07.2004. However, while allowing the aforesaid application the Member Incharge of the Judicial Committee of the Board has brushed aside the specific objection of the petitioner with regard to concealment of facts and its lack of competence to proceed with the matter in absence of power of Review.
33. It can not be disputed that the impugned order has been passed by a quasi judicial authority and such authority cannot review its order in absence of power of Review conferred under the Statute.
34. The power of review of quasi judicial authority in absence of specific provision under the statute has been dealt with in several cases of this Court as well as by the Apex Court. The Apex Court in the case of Dr. (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P. and Ors. reported in (1987) 4 Supreme Court Cases 525. has held that unless power of Review is expressly conferred on the authority by any statute under which it derives its' jurisdiction, the authority concerned has no power to Review its' earlier order. In Para-11 of the aforesaid judgment following observations has been made:
A quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissed of the Principal, acts as a quasi-judicial authority. The provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice- Chancellor. In the circumstances, it must be held that the Vice- Chancellor acted wholly without jurisdiction in reviewing, his/her earlier order. The review order of the Vice-Chancellor was, therefore, a nullity.
35. In the case of G. Srinivas v. Govt. of A.P. and Ors. reported in : AIR2005SC4455 . Hon'ble Apex Court has observed:
An order passed by mistake and ignorance of the relevant facts indisputably can be reviewed, if inter alia it is found that a fraud was practiced or there was willful suppression on the part of the appellant.
36. The Full Bench of this Court reported in 1997 (31) A.L.R. 680 (Smt. Shvraji and Ors. v. Dy. Director of Consolidation, Allahabad and Ors.) has held:
36. Coming to the provisions of the U.P. Consolidation of Holdings Act, it is our considered view that the consolidation authorities, particularly the Deputy Director of Consolidation while deciding a revision petition exercises judicial or quasi judicial power and, therefore his order is final subject to any power of appeal or revision vested in superior authority under the Act. The consolidation authorities, particularly the Deputy Director of Consolidation, is not vested with any power of review of his order and, therefore, cannot reopen any proceeding and cannot review or revise his earlier order. However, as a judicial or quasi judicial authority he has the power to correct any clerical mistake/arithmetical error, manifest error in his order in exercise of his inherent power as a tribunal.
37. In the case of Syed Madadgar Husain Rizvi and Anr. v. State of U.P. and Ors. reported in 2007 (9) ADJ 581 (DB) this Court has held:
A quasi judicial authority is not permitted to review its order unless it is so expressly conferred by the Statute itself.
38. Therefore we are of considered opinion that if the petitioner's application dated 05.01.2005, is treated as review application then the order impugned dated 11.5.2007 is without jurisdiction. Further if the petitioner's application is treated recall/restoration application the same should have been rejected at the very threshold as it do not contain any ground for recall or restoration. The order dated 05.07.2004 was passed on merit after hearing both the parties. Whatever reasons have been assigned in this application has already been raised by the respondents in their objection to the application dated 01.02.2003 of the petitioner for registration of Masjid, Azakhana/Imambara as a Wakf. The order dated 05.07.2004 is well considered order on merit. It is also noticeable that the application dated 05.01.2005 was not supported with any affidavit, therefore, also no weight could be attached to the aforesaid application and the same should have been rejected out rightly but the Incharge member of the Judicial Committee of the Board has not taken into consideration of all these aspects and passed the impugned order ignoring the petitioner's objection. It is also noticeable that respondents No. 3 to 5 while challenging the order dated 05.07.2004 in writ petition No. 4622 (M/B) of 2004 have also prayed for quashing the order dated 23.10.2003 by which the Administrator was appointed by the State Government on the ground that the State Government has no power to appoint Administrator under Section 102 of the Wakf Act. Since in this writ petition the respondents have already moved an application for withdrawal of the aforesaid writ petition, therefore, the point of power of State Government to appoint Administrator can not be raised here in the counter affidavit.
39. In fact the tenor of the order impugned is like exercise of appellate power but for the sake of argument even if it is presumed that there was power of Review even then while exercising the power of Review no such order could be passed as the grounds taken in the application for recall of the order have already been dealt with in the order dated 05.07.2004 and there was no new material before the Committee. In our view the order dated 05.07.2004 could only be set aside and the application dated 23.12.1997 could only be allowed either in the pending writ petition challenging the order dated 05.07.2004 or under Section 83(2) of the Wakf Act.
40. Therefore, in our view the order dated 11.05.2007 is without jurisdiction and unsustainable in the eyes of law.
Point No. 3:
41. It has been averred in the writ petition that the respondent No. 3 Sri Wali Haider has later been appointed as Member of Board in the later part of the year 2004 and immediately thereafter he was also appointed as Member of the Judicial Committee of which Mr. Hasan Ibrahim was the Incharge and got the impugned order passed by the Member/Incharge. Learned Counsel for the petitioner submitted that the impugned order dated 11.05.2007 is hit by bias as the respondent No. 3 was one of the Member of the Judicial Committee. It is also averred in the writ petition that on the instance of respondent No. 3 a resolution was passed on 26.9.2005 by the Board directing the Judicial Committee to decide the restoration application.
The word 'bias' in popular English parlance stands included within the attributes and broader purview of the work ' malice', which in common acceptation means and implies ' spite' or 'ill-will' and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record to come to the conclusion as to whether in fact there was existing a bias which resulted in miscarriage of justice.
Stroud's Judicial Dictionary (5th Edn.), Vol. 3, referred to 'Legitimate indignation does not fall within the ambit of malicious act. In almost all legal inquiries, intention, as distinguished from motive is the all important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse.
42. Jones Bros.(Hunstanton) v. Stevens (1955) 1 QB 272 : (1954) 3 All.ER 677 (CA), relied on. 'Bias' in common English parlance means and implies- predisposition or prejudice.
43. Lord Thankerton however in Franklin v. Minister of Town and Country Planning reported in 1948 AC 87 : (1947) 2 All ER 289(HL) observed..I could wish that the use of word 'bias' should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even-handed justice which the law requires for those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute.
44. The House of Lords in the case of R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2) reported in (2000)1 AC 119 has observed:.In civil litigation the matters in issue will normally have an economic impact; therefore a Judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rational disqualifying a Judge applies just as much if the Judge's decision will lead to the promotion of a cause in which the Judge is involved together with one of the parties.
45. The Apex Court in the case of Manak Lal v. Dr. Prem Chand 1957 SCR 575 has observed:
11. ...This Court has laid down that the test is not whether in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonable apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done must also appear to be done.
46. The Apex Court In the case of Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors. reported in (2001) 1 Supreme Court Cases 182 has held:
35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collected and necessary conclusion drawn therefrom-- in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained; If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, Tribunal or authority, question of declaring them to be unsustainable would not arise.
47. To our mind since the recall application dated 05.01.2005 has been filed after becoming the respondent No. 3 as Member of the U.P. Shiya Central Board of Wakf and later Member of the Judicial Committee also of which Sri Hasan Ibrahim was Incharge Member of the Board, who has passed the impugned order, the possibility of bias in passing the impugned order dated 11.5.2007 cannot be ruled out.
48. However, in this case, since we have already held that the impugned order was passed without jurisdiction, therefore, we are not inclined to decide the question with regard to the bias.
49. In the result the writ petition succeeds and is allowed. The order dated 11.5.2007 (Annexure-1) to the writ petition is quashed. The normal consequences will follow.
Writ Petition No. 54500 of 2007:
50. Although we have allowed the writ petition No. 28001 of 2007 and quashed the order dated 11.5.2007 but in this case we are not passing any order as the writ petition has already been finally disposed of on 05.11.2007 by the Division Bench presided over by Hon'ble Dr. B.S. Chauhan, J and Hon'ble Arun Tandon, J and the petitioner's application for recall of the order dated 05.11.2007 is pending, therefore, the recall application can only be considered by the aforesaid Division Bench of this Court.
Writ Petition No. 1091 of 2008:
51. Since we have already allowed the writ petition No. 28001 of 2007 challenging the order dated 11.5.2007 and quashed the same therefore, the impugned order in this writ petition dated 24.12.2007 which is the consequential order pursuant to the order dated 11.5.2007, is also quashed and the writ petition is allowed.