# Mohd. Ismail v. U.P. Sunni Central Waqf Board Thru. Its C.E.O. & Ors

- **Citation:** (2016) 7 ILRA 40
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-25
- **Bench:** Amreshwar Pratap Sahi, Dr. Vijay Laxmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ismail-v-u-p-sunni-central-waqf-board-thru-its-c-e-o-ors-44077
- **Pages:** 3

## Text

40 INDIAN LAW REPORTS ALLAHABAD SERIES

20. We, therefore, provide three weeks time to the respondent no. 1 to file a counter
affidavit as the said respondent is the authority of the Central Government and can explain the
aforesaid position of delegation.

21. The learned Standing Counsel has accepted notice for the respondent no. 3 who may
also file a counter affidavit.

22. Issue notice to respondent no. 2 returnable at an early date. Steps within a week.

23. The matter shall come up immediately after three weeks. The Central Registrar as well
as the respondent no. 3 shall not issue any further directions to the respondent no. 4 to restrain him
or to arbitrate the dispute or appoint any other Arbitrator.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.07.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE DR. VIJAY LAXMI, J.

Misc. Bench No.- 16209 Of 2016

Mohd. Ismail ...Petitioner
Versus
U.P. Sunni Central Waqf Board Thru. Its C.E.O. & Ors. ...Respondents

Counsel for Petitioner:
Mohd Shadab Khan

Counsel for Respondents:
Mohd. Tariq Sayeed, Q.H.Rizvi, Syed Aftab Ahmad

Held

Under Section 64(3) of the Waqf Act, 1995, a decision requiring 2/3rd majority must be both heard and
decided by the requisite majority.

Where the total strength of the Board is 11 members, 2/3rd majority comes to 8 members.
In the present case:

Hearing was conducted by only 6 members.

Decision was signed by 8 members.

Since the hearing itself was not conducted by the statutorily required 2/3rd majority, the decision-making
process was legally defective.
7 All. Mohd. Ismail Vs U.P. Sunni Central Waqf Board Thru. Its C.E.O. & Ors.

41
Consequently, the impugned order dated 31.5.2016 and the consequential Office Memorandum dated
18.6.2016 were held unsustainable in law.

The writ petition was allowed and the orders were quashed with liberty to the Board to pass a fresh order in
accordance with law after giving opportunity of hearing.

CASE LAW CITED

Qamar Noor v. U.P. Sunni Central Waqf Board & Ors., Writ-C No. 14655 of 2016 (decided on
19.04.2016)
Mirza Tauseef Beg & Anr. v. U.P. Sunni Central Waqf Board & Ors., Writ Petition No. 14308 (MB) of
2016 (decided on 20.06.2016)

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
&
Hon'ble Dr. Vijay Laxmi, J.)

1. Heard Sri Mohd. Arif Khan, learned Senior Counsel assisted by Mohd. Shadab Khan, Sri
Syed Afatab Ahmad, learned Counsel for the respondent No.3 and Sri Q.H. Rizvi, learned counsel
for the respondent Nos.1 and 2.

2. The petitioner questions the legality of the order dated 31.5.2016 as well as
consequential Office Memorandum dated 18.6.2016 on several grounds but the primary ground of
challenge raised is that 2/3rd majority out of 11 comes to '8' and the hearing was undertaken only
by 6 members whereas the decision has been signed by 8 members. The argument is that the
hearing and the decision both ought to have been rendered by a majority of 2/3rd as stipulated
under Section 64 (3) of the Waqf Act, 1995.

3. This issue has already been dealt with in two Division Bench judgements of this Court ?
one in the case of Qamar Noor v. U.P. Sunni Central Waqf Board and others, Writ-C No. 14655
of 2016 decided on 19.4.2016 and followed by this Court in a Division Bench decision in the case
of Mirza Tauseef Beg and another v. U.P. Sunni Central Waqf Board and others, Writ Petition
No.14308 (MB) of 2016 decided on 20.6.2016. The said decisions have been placed before us by
the learned counsel for the petitioner.

4. Learned Counsel for the respondents could not contradict the legal proposition so settled
in the aforesaid decisions and consequently, on this short ground alone, the impugned order
becomes unsustainable.

5. We allow the writ petition and quash the impugned order dated 31.5.2016 as well as the
Office Memorandum dated 18.6.2016 with liberty to the Board to pass a fresh order, in accordance
with law, after giving opportunity of hearing to the parties concerned.
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42 INDIAN LAW REPORTS ALLAHABAD SERIES

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2016

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Sales/Trade Tax Revision No.- 1468 Of 2005

M/S Kartikey Ispat Pvt. Ltd. ...Applicant
Versus
The Commissioner Of Trade Tax U.P. Lucknow ...Opposite Party

Counsel for Applicant:
Ashok Kumar

Counsel for Opposite Party:
S.C.

Held

The Tribunal recorded a categorical finding that the Assessing Authority was unjustified in estimating
undisclosed turnover for four months when the material related only to two months.
The Tribunal also found that there was no material indicating intention to evade tax beyond the survey date
(27 July 2001).
However, despite holding the estimation for four months unsustainable, the Tribunal arbitrarily reduced the
escaped turnover to ₹12,50,000 (purchases) and ₹11,50,000 (sales) without disclosing any basis or
reasoning.
An assessment made to the "best of judgment" must:
Be based on relevant material,
Have reasonable nexus with available evidence,
Not be arbitrary, capricious, or based on mere conjecture.
Since the Tribunal failed to indicate the material or reasoning forming the basis of its modified estimate, its
order was legally unsustainable.
The revision was allowed.
The Tribunal's order was set aside and the matter remanded for fresh decision in accordance with law.

CASE LAW CITED

State of Kerala v. C. Velukutty
CIT v. Laxminarain Badridas
1937 5 ITR 170 (Privy Council)
Jagadish Prasad Pannalal v. Member, Board of Revenue, West Bengal
1951 2 STC 27 (Calcutta High Court)
Doma Sahu Kishun Lal Sao v. State of Bihar
1951 2 STC 37 (Patna High Court)
State of Orissa v. Maharaja Shri B.P. Singh Deo