Gujarat High Court
The Gujarat State Waqf Board Through Its ... vs Shaikh Aunali Ismailji Ezzy on 19 March, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/CRA/162/2020 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/CIVILREVISIONAPPLICATIONNO. 162 of 2020
With
R/CIVILREVISIONAPPLICATIONNO. 186 of 2020
FORAPPROVALANDSIGNATURE:
HONOURABLEMR. JUSTICEBIRENVAISHNAV
==============================================================================
1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy No of the judgment ?
4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?
============================================================================== THEGUJARATSTATEWAQFBOARDTHROUGHITS CHIEFEXECUTIVEOFFICER Versus SHAIKHAUNALIISMAILJIEZZY ============================================================================== Appearance:
MR SHALINMEHTA,SR. COUNSELwith MRMANISHS SHAH(5859)for the Applicant(s) No. 1 MRMEHULS. SHAH,SR. COUNSELwith MRR.K.MANSURI(3205)for the Opponent(s)No. 1 NOTICESERVED(4)for the Opponent(s)No. 3 MRMTMHAKIM,ADVOCATEfor SAQUIBS ANSARI(7152)for the Opponent(s)No. 2 ============================================================================== CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date: 19/03/2021 COMMONCAVJUDGMENT
1. Both Civil Revision Applications were heard together and Page 1 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT hence are being disposed of by this common CAV Judgment.
2. Both these Civil Revision Applications have been filed under the provisions of Section 83(9) of the Waqf Act, 1995 read with Section 115 of the Code of Civil Procedure.
These Revision Applications have been filed to challenge the order dated 22.9.2020 passed by the Gujarat State Waqf Tribunal, Gandhinagar in Appeal No.30 of 2019.
3. Civil Revision Application No.162 of 2020 has been filed by the Gujarat State Waqf Board challenging the order of the Tribunal which quashed and set aside the order dated 23.9.2019 passed by the Board. Civil Revision Application No.186 of 2020 has been filed by one Muniruddin Fakruddin Farooqi - Respondent No.1 in the Appeal before the Tribunal.
4. The facts in brief are as under:
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C/CRA/162/2020 CAVJUDGMENT * Shaikh Aunali Ismailji Ejji preferred an application No.73
of 2018 in the prescribed form under Section 36 of the Waqf Act in April, 2018 to register one Trust by the name of Molayee Yakub Saheb Dargah, Daudi Bohra Samaj Qubrastan Waqf, Patan. The application was to register the Trust as a Waqf. Alongwith the application, the Applicant gave a declaration of Waqf in which he made a statement on oath regarding the properties owned by the Waqf. As prescribed under the Act, a paper publication was made inviting objections, if any, against the registration of the Waqf as made by the Applicant Shaikh Aunali Ismailji Ejji. Since no objections were received, the registration was made of the Waqf by the Board under Section 36 of the Waqf Act by an order dated 20.6.2018. The Trust was registered as Maulana Yakub Sahed Dargah, Daudi Bohra Samaj Qubrastan Waqf and a certificate was issued under Section 36 of the Act.
* On 24.6.2018, the Applicant of Civil Revision Application No.186 of 2020 Muniruddin Fakruddin Farooqi raised an objection which was received by the Board on 12.3.2019. He Page 3 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT claimed to be the Administrator of a Trust registered under the Bombay Public Trust Act. As per the objection so received, it was the case of the objector / Civil Revision Applicant No.186/2020 that the Trust that was registered by the order dated 20.6.2018 had a similar name as that of one of the Trusts and the objection further was that inquiry ought to be made as to the claim of the Trust regarding the properties of Waqf including Dargah and Qubrastan. On the objection being received, the Board made inquiries. An inquiry report was submitted by the members of the petitioner Board on 6.7.2019. The inquiry report prima facie recorded a finding that as per the claim of the Applicant whose Waqf was registered on 20.6.2018, there was no Dargah or Qubrastan found as claimed in the application and what was in fact found was one in the Shopping Center. The inquiry report was so filed opining that the Waqf Board had been misled into registering the Trust and, therefore, the registration ought to be cancelled. A show cause notice was issued by the Waqf Board on 25.7.2019 to the Respondent No.1 of Civil Revision Application No.162 of 2020 Page 4 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT namely Shaikh Aunali Ismailji Ejji asking him to show cause as to why the registration should not be cancelled. In response to the show cause notice, the Respondent No.1 responded by saying that the object of the Trust was to provide facility of food and stay to the devotees to the Dargah of Molayee Yakubsaheb Dargah and there was therefore no false or a misleading statement made. The Board, however, by an order dated 23.9.2019 cancelled the registration of the Trust of the Waqf of the Respondent No.1. After the order was so made, the Respondent No.1 filed an appeal namely; Waqf Appeal No.30/2019 before the Gujarat Waqf Tribunal. The Tribunal by the order impugned in these revision applications dated 22.9.2020 set aside the order of the Board dated 23.9.2019 by which the Board cancelled the registration of the appellant Trust. The Tribunal further held that the order of cancellation of registration was made without giving a notice to the sole Trustee. It also held that it was not open for the Waqf Board to review its own order of registration and if the registration was so made and if the Board or any party was aggrieved by the Page 5 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT registration, such a party could have filed an appeal under Section 83(2) of the Waqf Act.
* It is against these orders reversing the order cancelling registration and, therefore, restoring the registration of the Respondent No.1 of Civil Revision Application No.163 of 2020, that the Board and the original objector are before this Court in Revision.
5. In Civil Revision Application No.162/2020, Mr. Shalin Mehta, learned Senior Counsel with Mr. Manish R. Shah, learned advocate for the Applicant has appeared for the Applicants whereas Mr. Mehul S. Shah, learned Senior Counsel with Mr. R.K. Mansuri, learned advocate has appeared for Respondent No.1. Mr. MTM Hakim, learned counsel has appeared with Mr. Saquib S. Ansari for the objector Respondent No.2.
6. In Civil Revision Application No.186 of 2020 filed by the objector Muniruddin Fakruddin Farooqi, Mr. MTM Page 6 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT Hakim, learned Counsel who appears for the original Respondent No.2 in Civil Revision Application No.162 of 2020, has appeared for the Applicant while Mr. Shalin Mehta, learned Senior Counsel with Mr. Manish R. Shah, learned advocate appeared for Respondent No.1 whereas Mr. Mehul S. Shah, learned Senior Counsel with Mr. R.K. Mansuri, learned advocate has appeared for Respondent No.2 Shaikh Aunali Ismailji Ejji in whose favour the appeal is allowed by the Tribunal.
7. While arguing for the Gujarat State Waqf Board (For short, hereinafter referred to as `Board'), Mr. Shalin Mehta, learned Senior Counsel with Mr. Manish R. Shah, learned advocate would take the Court through the various provisions of the Waqf Act, namely, Section 3(c) which defines "Board," Sec. 13 which provides for "Incorporation" of the Board", Section 13(3) which provides that the Board is a Body Corporate. Sections 17 and 18 which provide for the "Meetings of the Board" and "Committees of the Board". Section 30 which provides for Page 7 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT "Inspection of Records" and Section 32 which provides for "Powers and functions of the Board". He has also taken the Court to the Provisions of Sections 72, 75, 79 and 80. By reading these Provisions, Mr. Shalin Mehta, learned Senior Counsel would contend that the Board is a Body Corporate constituted under the Provisions of the Waqf Act. Inviting the Court to the Provision of Section 92, Shri Mehta would submit that a Board can be a party to any suit or proceeding in respect of a Waqf and may appear and plead as a party to such suit or proceedings. He would therefore submit that from a conjoint reading of all the provisions what is apparent is that the Waqf Board is neither a judicial body nor a quasi judicial body. According to him, it is an administrative body exercising mainly administrative functions and rarely some quasi judicial functions. Assailing the order of the Tribunal by which the order of the Board canceling the registration was set aside, Mr. Mehta, learned Senior Counsel would submit that as an administrative body, the Board had the power Page 8 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT to cancel the Registration of a Waqf even if there was no express power to do so. For this, he would rely on the provisions of Section 21 of the General Clauses Act. * Mr. Shalin Mehta, learned Senior Counsel would submit that the power to grant registration to a Waqf is an Administrative Function. It is neither a Judicial nor a Quasi Judicial function as granting such registration is akin to granting registration either to a Company or a Cooperative Society or a Public Trust. There are no trappings of a Judicial or a Quasi Judicial power. He would therefore submit that if the Board in discharge of its administrative power had recalled the earlier order and cancelled the registration of the Respondent No.1, the decision taken while exercising administrative function can be reviewed even in absence of an express power in the Waqf Act. Even otherwise, according to Mr. Mehta, if the decision was taken in exercise of a judicial or a quasi judicial function, it can be reviewed if there is a fraud or concealment or misrepresentation of fact. Despite express power to review, conferred by a statute when there is a fraud or Page 9 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT concealment, it is always possible to review the order passed by the Board. In support of his submissions, he relied on the decision in the case of Sarabjit Singh vs Ms. Gurpal Kaur reported in AIR 1996 SC 2592 (Paragraph No.20 thereof) to submit that it is always open for an authority to recall his order if the same is obtained by fraud. Reliance was also placed on paras 17 and 36 of the decision in the case of Chintpurni Medical College And ... vs The State Of Punjab reported in 2018 (15) SCC 1. Reliance was also placed on the Division Bench decision of Allahabad High Court in Writ Petition No.67820 of 2013 in the case of Mohammad Khalil v. U P Sunni Central Waqf Board. Mr. Mehta has also relied on the decision in the case of Syed Zahiruddin Ahmed Baghadadi v. Board of Waqfs and others reported in 2008 (Law Suit) Calcutta, 811 (Paragraph Nos.46 and 51 to 59 thereof). * Mr. Shalin Mehta, learned Senior Counsel would submit that the Board has a locus / power to cancel the registration of the Waqf if it is obtained by fraud and misrepresentation. He Page 10 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT would rely on the inquiry report and show cause notice to submit that what is evident from the report is that on inquiry it was found that there is no Dargah or Qubrastan and, therefore, the application made by Shaikh Aunali Ismailji Ejji for registration of the Trust had been made so by a fraud.
8. Since Mr. MTM Hakim, learned counsel appearing with Mr. Saquib S. Ansari, learned advocate also appeared assailing the order of the Tribunal, the Court thought it fit to take a consolidated view and, therefore, before inviting Mr. Mehul Shah the common Respondent, Mr. Hakim was also invited to make his submissions in Civil Revision Application No.186 of 2020 where the objector Muniruddin Fakruddin Farooqi for whom Shri Hakim appears is aggrieved by the order inasmuch as, the registration which was cancelled by the Board on recalling the order of registration has been set aside by the impugned order of the Tribunal. He has made the following submission:
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C/CRA/162/2020 CAVJUDGMENT * He would submit that he would agree with Mr. Shalin
Mehta, inasmuch the impugned order passed by the Waqf Tribunal is illegal and without jurisdiction and the findings of the Tribunal that the Waqf Board does not have power to review its own order and, therefore, could not have cancelled the registration is clearly an erroneous finding of the Tribunal. * Mr. MTM Hakim would submit that considering the Scheme or the Provisions of the Waqf Act, the Waqf Board is a quasi judicial authority. In accordance with the settled principles, therefore, if an order passed by the quasi judicial authority is obtained by fraud, misrepresentation and / or deceit, the quasi judicial authority or an administrative authority has an inherent jurisdiction to exercise powers of review and recall the order even if there are no specific Provisions in the Statute. He also would in support of his contention that the Waqf Board is a quasi judicial authority invite the Court's attention to the provisions of following Sections of the Waqf Act.
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C/CRA/162/2020 CAVJUDGMENT (i) Section 32 Powers and Functions of the Waqf Board, (ii) Section 36 Registration, Section 37 Register of Auqaf,
(iii) Section 39 Powers of the Board in relation to Auqaf which have cease to exists,
(iv) Section 40 Decision if a property is a Waqf property,
(v) Section 52 Recovery of Waqf property transferred in contravention of Section 51,
(vi) Section 64 Removal of Mutawalli,
(vii) Section 67 Supervision and Supersession of Committee of Management,
(viii) Section 69 Power of Board to Frame Scheme for Administration of Waqf,
(ix) Section 70 Inquiry Relating to Administration of Waqf,
(x) Section 71 Manner of Holding Inquiry and more particularly, Section 71 subSection 2. Page 13 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021
C/CRA/162/2020 CAVJUDGMENT * In support of his submissions, that the Waqf Board is a
quasi judicial authority, Mr. Hakim relied on the following decisions:
[a] AIR 1982 KAL 288 - Sk Abdul Latif Vs. Commissioner of Wakf and Another;
[b] (2019) 3 KLT 1064 (Ezhome Sunni Valiya Juma Masjid and Darul Uloom Madrasa Committee Vs. Chief Executive Officer, Kerala State Waqf Board) & [c] 2008 Lawsuit (Kal) 811 - Syed Zahiruddin Ahmed Baghdadi Vs. Board of Waqfs and Ors * Mr. Hakim would submit that if the judgment of the Calcutta High Court in Abdul Latif (Supra) is perused, the same is in the context of Section 27 of the Bengal Waqf Act which is akin to Section 32 of the Waqf Act, 1995 and it is evident therefore that the Court held that the Board exercises quasi judicial powers. Relying on the Kerala High Court Judgment in the case of Ezhome Sunni Valiya Juma Masjid (Supra) where the provisions of Sections 14 and 32 have been considered, Mr. Hakim would submit that it is evident that the Page 14 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT Board exercises quasi judicial powers. In the case of Syed Zahiruddin Ahmed Baghdadi (Supra), it was evident on reading that the Court had held that the Board sometimes exercises administrative as well as quasi judicial powers and when it exercises such powers of registration under Sec.36, such powers are exercised as quasi judicial authority.
9. On the question whether a quasi judicial authority has an inherent jurisdiction to exercise powers of review and recall, even in absence of a specific provision in the Statute, Shri Hakim relied on the following decisions:
(I)(2000) 3 SCC 581 - United India Insurance Co.
Ltd. Vs. Rajendra Singh and Ors., (II) (2005) 13 SCC 777 - Kapra Mazdoor Ekta Union Vs. Birla Cotton Spinning and Weaving Mills Ltd and Anr., (III) (2007) 4 SCC 221 - A.V. Papayya Sastry and Others Vs. Govt. of A.P. and others & (IV) (2019) 14 SCC 449 Jal Vidyut Nigam Versus Raj Kumar Rajinder Singh (Dead) through legal representatives and others.
. He would submit that when an order has been obtained Page 15 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT
through fraud or misrepresentation, any Court or authority has a power to review, recall or reconsider the order. Reading the aforesaid line of decisions, Mr. Hakim would submit that even where there is no inherent power of review provided in a Statute, when there is fraud writ large based on which the order has been passed, fraud would vitiate the act and, therefore, any authority, in the present case the Waqf Board, had the power to recall the order. He would therefore submit that the order of the Waqf Board dated 23.9.2019 by which the registration of the Respondent was cancelled ought not to be set aside by the Tribunal on the ground that the Board had no power to review the same. He would further submit that even Sec. 21 of the General Clauses Act when read with Section 41 of the Waqf Act provided that a power to quash or amend also provides the power to rescind or take away.
10. Mr. Hakim would submit that from the chronology of events it was clearly evident that the Respondent No.2 of Civil Revision Application No.186/2020, had made serious Page 16 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT fraud and misrepresentation by obtaining registration in the name of "Molayee Yakubsaheb Dargah Daudi Bohra Qubrastan Waqf (Patan)" though there was neither any Qubrastan and / or Dargah and when it was the case of the Applicant i.e. Mr. Hakim's client by way of an objection that it was receptively similar to the registration of their Trust namely; Moualana Mehboob Dargah and Masjid and Qubrastan, Patan. He submitted that therefore there was a fraud and deception played by Respondent No.2 and, therefore, the Board had rightly cancelled the registration and the Waqf Tribunal ought not to have upset the order.
11. Mr. Mehul Shah, learned Senior Counsel appearing for the Beneficiary in whose favour the order of the Tribunal has been passed and the objector's application of cancelling the registration has been reversed and the registration of Shaikh Aunali Ismailji for whom he appears has been restored, would submit as under: Page 17 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021
C/CRA/162/2020 CAVJUDGMENT * Mr. Mehul Shah, learned Senior Counsel would take the Court through the application and the declaration filed therewith for registration of the Trust under Sec. 36 of the Waqf Act. Reading the application from the paper book, he would submit that it was categorically stated that the Waqf property was situated at Panchmukhi Darshan Shopping Center, S 17, second floor, City Survey No.2406 / 5 / 17, village Bhungadi, District Patan. It was given to the Waqf and the registration was sought so that the property was given for the benefit of the pilgrims who came to the Dargah. He would invite the Court's attention to the declaration made and submitted alongwith the application dated 23.3.2018. The registration was granted after publication of a Public Notice and after due inquiry. Reading of the application would indicate when read in context of the provisions of Section 36 of the Act that the application is in the nature of a plaint which has to be verified as a plaint in accordance with the provisions of the Code of Civil Procedure, 1908. Findings were recorded Page 18 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT in the order granting registration. The order, therefore, becomes an order in exercise of powers under a quasi judicial role. The same cannot be recalled or reviewed in absence of any fraud being played by the Applicant who sought registration and was granted so.
* Mr. Mehul Shah, learned Senior Counsel would submit that if Section 36 is read it is no manner of doubt that every application made under Section 36 has to be signed and verified by the Applicant in the manner provided in the Code of Civil Procedure for signing and verification of pleadings. Before registration, the Board makes inquiries as it thinks fit in respect of the genuineness and validity of the application and the correctness of any particulars therein and when the application is made, such an application is granted after giving an opportunity of hearing, if so desired. In other words, it is not a manner of doubt with the powers of registration so exercised is a quasi judicial power.
* Mr. Mehul Shah, learned Senior Counsel would submit Page 19 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT
that the Waqf Board has no locus to file Civil Revision Application because it cannot be said to be a person aggrieved. In support of this, Mr. Mehul Shah, learned Senior Counsel would rely on the decision in the case of Aayukhan Nurkhan Pathan v. State of Maharashtra reported in 2013(4) SCC
465. He would submit that the tribunal committed no error in holding that if any party including the Board is aggrieved by the registration of the Trust it could so challenge it by filing an appeal under Section 83 of the Waqf Act. He would then take the Court to the provisions of Section 83 of the Waqf Act. * In support of his submission that the order passed of registration under Section 36 is a power in exercise of quasi judicial functions. Mr. Mehul Shah, learned Senior Counsel would rely on the following decisions:
Sr. Party Name Citation
No.
1 Naresh Kumar Vs. Govt. of 2019 (9) SCC
NCT Delhi 416
2 KalaBharti Advertising Vs. 2010(9) SCC
Hemat Vimalnath 437
3 Ali Makin Naqvi Vs. UP Shia 2008 SCC
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C/CRA/162/2020 CAVJUDGMENT
Central Board Online ALL 617
4 Alok Sarkari Grih Nirman Vs.
Shia Central Waqf Board
5 Kapra Mazdoor Ekta Union Vs. 2005(13) SCC
Mgmt. of Birla Cotton Spinning 777
and weaving.
6 C.A Aboobacker Vs. The State 2020(2) KLT
of Kerala Waqf Board 458
7 A.K. Jamal Vs. Union Of India WP(C) NO.
2623 of 2020
* Mr. Mehul Shah, learned Senior Counsel would further
submit that if the provisions of the Waqf Act are read, there is no express provision of review provided in the Act. Therefore, admittedly the Waqf Board has no power of review vested in it to recall its own orders as a quasi judicial authority.
12. Assuming without admitting that a quasi judicial authority would have power to recall its own order in absence of any statutory provision on account of fraud or misrepresentation, he would invite the attention of the court to the contents of the show cause notice and would submit that the only ground on which the Board issued a show cause notice was that according to the Board the Page 21 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT application and the order had been passed on the ground that the Applicant had misled the Board. There was no allegation of fraud.
13. Inviting the attention to the provisions of Sections 17 and 18 of the Indian Contract Act, 1872 where fraud and misrepresentation are defined, Mr. Shah, learned Senior Counsel would submit that an element of fraud would require intentional, willful and an overt act. The Applicant had filed the application for registration in the prescribed format alongwith the necessary documents and the Waqf Board passed an order under Section 36 of the Act. Nothing was suppressed. It was the specific case in the application that the property i.e. the shop in the shopping center was to be given for food and shelter of the pilgrims who visit the Dargah. It was a clear statement of fact from the beginning that the Waqf of the said property is done to provide and manage certain facility to pilgrims who visit Dargah. A quasi judicial authority like the Board cannot review the order and cancel the registration Page 22 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT in absence of any fraud. For the same, he would rely on the following decisions:
Sr. Party Name Citation
No
1 Chief Engineer MSEB Vs. 2005(10) SCC 465
Suresh Raghunath Bhokare
2 A.C. Ananthaswamy Vs. 2004(8) SCC 588
Borariah (dead) By LRS
3 Harjas Rani Makhija Vs. 2017(2) SCC 797
Pushpa Rani Jain
14. Mr. Mehul Shah, learned Senior Counsel would submit that the Board on the same date passed two orders i.e. on 23rd September, 2019 recalling the registration and also passed an order under Section 64 of the Act by which the Respondent who made the application was removed as Mutavalli. Essentially the findings of both the orders in Appeal No.30 of 2019 and Appeal No.28 of 2020 are the same and both the Applicants have not challenged these orders. The revision applications therefore are barred by res judicata. He would rely on the following decisions for the said submission:
Sr. Party Name Citation
No.
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C/CRA/162/2020 CAVJUDGMENT
1 Premiere Tyre Ltd. Vs. Kerala AIR 1993 SC
State Road Transport 1202
Corporation.
2 Shri Gangai vinayagar Temple 2015 (3) SCC
Vs. Minakshi Ammal. 624
3 Darayas Bamansha Medhora 2002 (1) GLR
Vs. Nariman Bamansha 474
Medhora
15. In rejoinder, Mr. Hakim on the question of res judicata in context of the findings in Appeal No.28 of 2020 would submit that the submission of Shri Shah on the aspect of res judicata is wholly misconceived both in law and facts. The Civil Revision Applications are essentially preferred challenging the order passed in Waqf Appeal 30 of 2019. In the order passed in Waqf Appeal No.28 of 2020 wherein the order under Section 64 of the Act was passed removing the Respondent No.2 of the Trust as Mutawalli, the Applicants of the Civil Revision Application are not aggrieved as such because that was in context of another Trust and, therefore, the same is not challenged.
16. Having considered the submissions of the learned Counsels for the respective parties, the moot question that Page 24 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT needs to be decided is whether the powers that the Board exercised under Section 36 of the Waqf Act are administrative or judicial or quasi judicial and even if either way they are administrative or quasi judicial, was it proper for the Board to recall its own orders once having granted registration to the Trust, on an objection being lodged by the Applicant of Civil Revision Application No.186 of 2020. All the learned counsels have taken this Court through the provisions of the relevant sections of the Waqf Act.
17. Reading the provisions, before going to decide on the power of the Board whether the Board had the power to recall its own order without any specific provisions in the Act, reading provisions of Section 13 of the Act would indicate that the Board is a Body Incorporated under the Act by the State Government. It is an administrative body, incorporated to supervise and manage the Waqfs within the State of Gujarat. In discharge of its duties, in order to carry out the intentions under the Act at some Page 25 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT stages or reading provisions of various sections, such as Sections 36 and 41 of the Waqf Act, what is evident is that though it mostly acts in the form of administrative action, it does take into its fold actions in the form of donning the role of a quasi judicial authority. When Sections 36, 40 and 41 are read which fall within the same Chapter and Heading namely; Chapter 5 - Dealing with Registration of Auqaf what can be seen is that as in the case of registration whether a property is a Waqf property, the Board undertakes an inquiry into such questions and when such inquiry is undertaken, that inquiry is subject matter of a challenge when read in context of Section 40 with regard to the decision of the Board whether a property belongs to a Waqf or not. The orders of the Board taken under Section 40 of the Act are subject to it being modified for reward by the Tribunal. It will be in the fitness of things to reproduce Sections 36 and 40 of the Act, which read as under:
"36. REGISTRATION: (1) Every 2[waqf], whether created before or after the commencement Page 26 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT of this Act, shall be registered at the office of the Board.
(2) Application for registration shall be made by the mutawalli:
Provided that such applications may be 3[made by the waqf] or his descendants or a beneficiary of the [waqf] or any Muslim belonging to the sect to which the 2[waqf] belongs.
(3) An application for registration shall be made in such form and manner and at such place as the Board may by regulation provide and shall contain the following particulars:--
(a) a description of the 2[waqf] properties sufficient for the identification thereof;
(b) the gross annual income from such properties;
(c) the amount of land revenue, cesses, rates and taxes annually payable in respect of the 2[waqf] properties;
(d) an estimate of the expenses annually incurred in the realisation of the income of the 2[waqf] properties;
(e) the amount set apart under the 2[waqf] for--
(i) the salary of the mutawalli and allowances to the individuals;
(ii) purely religious purposes;
(iii) charitable purposes; and
(iv) any other purposes;
(f) any other particulars provided by the Board by regulations.
(4) Every such application shall be accompanied by a copy of the 2[waqf] deed or if no such deed has been executed or a copy thereof cannot be obtained, shall contain full particulars, as far as they are known to the Applicant, of the origin, nature and objects of the 2[waqf].Page 27 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021
C/CRA/162/2020 CAVJUDGMENT (5) Every application made under subsection (2) shall be signed and verified by the Applicant in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of pleadings.
(6) The Board may require the Applicant to supply any further particulars or information that it may consider necessary.
(7) On receipt of an application for registration, the Board may, before the registration of the 1[waqf] make such inquiries as it thinks fit in respect of the genuineness and validity of the application and correctness of any particulars therein and when the application is made by any person other than the person administering the 1[waqf] property, the Board shall, before registering the 1[waqf], give notice of the application to the person administering the 1[waqf] property and shall hear him if he desires to be heard.
(8) In the case of 2[auqaf] created before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in the case of 2[auqaf] created after such commencement, within three months from the date of the creation of the 1[waqf]:
Provided that where there is no Board at the time of creation of a 1[waqf], such application will be made within three months from the date of establishment of the Board.
40. Decision if a property is 1[waqf] property.--
(1) The Board may itself collect information regarding any property which it has reason to believe to be 1[waqf] property and if any question arises whether a particular property is 1[waqf] property or not or whether a 1[waqf] is a Sunni 1[waqf] or a Shia 1[waqf], it may, after making such inquiry as it may deem fit, decide the question.
(2) The decision of the Board on a question under subsection (1) shall, unless revoked or modified by the Tribunal, be final.
(3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is Page 28 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT 1[waqf] property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is 1[waqf] property, call upon the trust or society, as the case may be, either to register such property under this Act as 1[waqf] property or show cause why such property should not be so registered:
Provided that in all such cases, notice of the action proposed to be taken under this subsection shall be given to the authority by whom the trust or society had been registered.
(4) The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under subsection (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal. "
18. Therefore, though Mr. Shalin Mehta would contend that the powers of the Board are purely administrative in nature, and Mr. Hakim would submit that it exercises powers as a judicial authority what is evident on reading the decision in the case of Syed Zahiruddin Ahmed Baghadadi (Supra) is that the Board can exercises both the administrative as well as quasi judicial powers. Relevant paragraph Nos.27, 28, 40 and 44 to 54 are reproduced hereunder:
"27. In consideration of the respective party's submission in the present matter, it is revealed that the moot question of dispute here lies in, firstly in respect of appointment of Respondent No.3 as Mutwali by the Board of Wakfs and Page 29 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT secondly in the cancellation of such appointment of Respondent No.3 on the application by the present petitioner, by a subsequent order.The grievance from the side of the Respondents, specifically Respondent No.3 remained in asking the authority of the Board of Wakfs to review its own order and to pass an subsequent order adverse to the first one by way of canceling of appointment of Mutwali. It is fact that, though 'canceling of appointment' of a Mutwali has not been prescribed in the Wakf Act, 1995 in such wording, there is provision for removal of Mutwali under statutory provision of Section 64 of the Act.
28. Before going to any further detail to analyse the authority of the Board of Wakf to reverse its previous order without taking the course of review (which the present act does not provide) or an enquiry as per provision of Section 64 of the Act, the reference of the powers and function of the Board as provided in the Wakf Act, 1995 is to be looked into in respect of the appointment and removal of the Mutwali. Section 32(1) of the Act reads as follows : "Subject to any rules that may be made under this Act, the general superintendence of all Wakfs in a State shall vest in the Board established for the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such Wakfs were created or intended: Provided that in exercising its powers under this Act in respect of any Wakf, the Board shall act in conformity with the directions of the Wakif, the purposes of the Wakf and any usage or custom of the Wakf sanctioned by the School of Muslim law to which the Wakf belongs. Explanation: For the removal of doubts, it is hereby declared that in this subsection, 'Wakf includes a Wakf in relation to which any scheme has been made by any Court of law, whether before or after the commencement of this Act."
40. I agree with the submission of Mr. S. P. Ray Chowdhury, the learned Senior Counsel for the Respondent No.3 that the Act does not provide any specific provision for review of it's own order by the Board and that the Board can only remove a Mutwali only as per provision of Section 64 of the Act. I also agree with Mr. Ray Chowdhury that the Page 30 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT specific conduct as provided in Clauses A(a) (k) was not the cause of removal of the Respondent No.3 from Mutwali, by the resolution of the Board dated 14.10.1999.
44. But the moot question still remains to be decided whether order by way of cancellation without having the provision of review in the act or without holding any enquiry as per provision of Section 64 of the Act, can be sustained.
45. Before going to decide on the point of power of the Board to recall its own order without any specific provision inthe Act, the status of the Board is to be scanned. The provision of Section 13 of the Wakf Act, 1995 is in respect of incorporation of the Board which is appointed by the State Government by the notification in the official gazette and is a body corporate having perpetual succession. The Wakf of Board is not conglomeration of individuals and not even akin to company but is a statutory body, pure and simple. It is an administrative body incorporated to supervise Wakf in the Estate and its management and administration.
46. So it is found that the Board of Wakf is an Administrative body created by the statute and its acts are mostly in the form of administrative action and such administrative action sometimes takes the form of quasi judicial action when the Board is to go through some enquiry procedure for arriving on some decisions in relation to the Wakf. The process of appointment and the removal of a Mutwali comes within such quasi judicial process of the Borad of Wakf.
47. In this context, Mr. Banerjee, learned Senior Advocate for the petitioner submitted that even though there is no provision of review in the Act itself, the Board has every power to recall its previous order which has been obtained by concealment or misrepresentation of fact which amounts to fraud. In this regard, Mr. Banerjee earlier relied upon the decision reported in 1992 (1) Supreme Court Cases 534 to argue that fraud is product of deliberate active role of representator in respect of some fact which he knows to be untrue and still by making such misrepresentation, he succeeds in obtaining an order in his favour by misleading the representee making him to believe his representation to be true.
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48. In this context reference may be made to the order dated 30.1.1995 of the Board by which the Respondent No.3 has been appointed as Mutwali and also to the resolution dated 14.10.1995, to ascertain that the Respondent No.3 procured her appointment only producing the Deed of Trust left by her husband Badruddin Ahmed. It is nobodys' denial that the Deed of Wakf which never recited that the future Mutwali would be able to create any Deed of Trust or other document for selecting a person of his choice to be future Mutwali on his demise. In this context, reference may be made to 1969 (2) ACC 471 (Ahmed G. H. Hariff and Ors. v. Commissioner of Wealth Tax, Kolkata). It has been observed by the Hon'ble Apex Court that "the moment of Wakf is created' all rights of property pass out of Wakif and vest in the Almighty. Therefore, the Mutwali has no right in the property belonging to the Wakf. He is not a Trustee in the technical sense, his position been merely that of a Superintendent or a Manager. A Mutwali has no power; without the permission of the Court, to mortgage, sale or exchange of Wakf Property or any part thereof unless he is expressly empowered by the Deed of Wakf to do so".
49. From such observation of the Hon'ble Court as well as from the description of Mutwali in Wakf Act, it is revealed that the Mutwali has got no independent authority to transfer his right in the Wakf to some person of his/her choice by creating any instrument to that effect. However, such an act is not totally restricted on the Mutwali since a Mutwali can do so if so authorised by the original Deed of Wakf containing the desire of the Wakif or in the event he has taken the permission of a Court in that respect.
50. If such an act on an existing Mutwali is restricted, the last Mutwali Badruddin Ahmed had no authority to create any Deed of Trust in favour of a person of his choice, his wife Mst. Nazira Khatoon in the present case. As already discussed, the original Deed of Wakf contained the version of succession of Mutwali by way of lineal male descendent of original Mutwali and in that case, the Respondent No.S's eligibility to become a Mutwali was not clean since she is not indirectly authorised to apply for such in the original Deed of Wakf. Absence of eligibility of the Respondent No.3 was in the mind of the Respondent No.3 herself and as her husband Badruddin Ahmed was the last Mutwali, the privilege of such office could Page 32 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT not be ignored by the Respondent No.3 and for that reason there was a creation of unauthorised Deed of Trust by Badruddin Ahmed. Order of the Board dated 30.1.1995 shows that the Respondent No.3 referred the original Deed of Wakf before the Board at the time of hearing an enquiry for selection to the office of Mutwali since there was no mention or reference of such Deed of Wakf in the said order. Since the original Deed of Wakf was not referred to or placed before the Board by the Respondent No.3 at the time hearing of her application for appointment as Mutwali to establish the authority for creation of such Deed of Trust by Badruddin Ahmed, it may be treated as concealment of fact and that concealment might have been done by the Respondent No.3 for the purpose of her success with an order of her appointment to the office of Mutwali. This act of Respondent No.3 was for the purpose of creation of an impression in mind of the members of the Board of Wakf that she was properly authorised by the last Mutwali to ascend to the chair of Mutwali.
51. In this context, the practice of fraud by way of mis representation and concealment of fact, a reference can be made to the view of the Hon'ble Apex Court in a decision reported in 2004 (3) Supreme Court Cases 1 (Ashok Leyland Limited v. State of T.N. and Anr.) wherein the Hon'ble Court held "Suppression of a material document would also amount to a fraud on the Court" and in this context the Hon'ble Apex Court made reference to Shrisht Dhawan of the said Court wherein it was held: "Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easyhearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which Page 33 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of the fact with knowledge that it was false. In a leading English case (Derry v. Peek) what constitutes fraud was described thus:(All ER p. 22 BC) 'Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false."
52. If the Board is deceived by the act of the Applicant for appointment as Mutwali by way of misrepresentation and concealment of fact, having no eligibility to be considered to the office of Mutwali and if any order passed to that effect for such appointment it may be treated that such order is not properly authorised order since it is result of practicing of fraud upon the Board.
53. It has been discussed earlier that the Board shall act in conformity with the direction of the Wakif and so it is a mandatory direction upon the Board that it cannot go out side such direction, if so given, in the Deed of Wakf for the appointment of future Mutwali. Since the original Deed of Wakf was not consulted at the time of appointment of Respondent No.3 as Mutwali, as it appears from the text of the order dated 30.1.1995 it is revealed that the Board did not act in conformity with the direction of the Wakif as the Deed of Wakf created by the Wakif clearly stated that the Mutwali will continue through the male descendent of the.Original Mutwali through his sons, grandsons etc. In that case it may be presumed that the order dated 30.1.1995 has an inherent and patent error in respect of appointment of Respondent No.3 as it was not done by obeying the mandatory direction Page 34 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT upon the Board in respect of its superintendence, control on the administration of the Wakf. If such an order is passed by the Board which is embedded with patent error whether the Board can rectify the same by a subsequent order by following the mandatory direction as provided in Section 32(1) of the Wakf Act. In this context, reliance may be made to a decision reported in AIR 1994 Supreme Court 853 wherein it has been held: "A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the opposite party."
54. It is fact that in the four corners of Wakf Act there is no provision for making review of its own order by the Board of Wakf nor there is any whisper in any of the sections that the Board may rectify an error created by a previous order of the Board passed on the same subject. It is fact that Administrative Authority has got no inherent power to review unless such power is conferred upon it by the concerned law specifically or bye necessary implication and in this respect I should abide to the decision relied upon by Mr. Ray Chowdhury as reported in AIR 1970 Supreme Court 1273 (supra). But at the same time it is also to be looked into whether such an Administrative Authority can recall or revoke its earlier order which has been obtained by practicing fraud or concealment of fact and mis representation, without any application of power of review. In this context, this Court rely upon a decision reported in AIR 1989 Supreme Court 997 wherein it has been held: "Indeed, the submissions of Sri Thakur on the point contemplate the exercise of the power to cancel or revoke the permission in three distinct situations. The first is where the grant is itself vitiated by fraud or mis representation on the part of the grantee at the time of obtaining the grant. To the second situation belong the class of cases where the grantee, after the grant violates the essential terms and conditions subject to which the grant is made. In these two areas, the power to grant must be held to include the power to revoke or cancel the permit, even in the absence of any other express statutory provisions in that behalf. There must, of course be the compliance with the requirements of natural justice and the grounds must be such as would justify such drastic action. This cancellation is a preventive step. The one aspect of the remedial measures is set Page 35 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT out in Section 27 of the Act. There may be cases of third kind where the grant may be voidable at the instance of Development Authority or otherwise entitling the Development Authority to initiate appropriate declaratory or other action to get rid of the effect of the permission. It is true that in exercise of powers of revoking or cancelling the permission is akin to and partakes of a quasijudicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the direction of others as this would amount to abdication and surrender of its discretion. It would then not be the authority's discretion that is exercised, but someone else's. If an authority "hands over its discretion to another body it acts ultra vires." Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority. De Smsith sums up the position thus:
"The relevant principles formulated by the Courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. The authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories; failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive."Page 36 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021
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19. Reading the aforesaid decision would also indicate that when they are read in context of the provisions of Waqf Act, there is no provision for making a review of its own order by the Board. Neither of the Sections provide for such power of review. The question whether an administrative authority has got an inherent power to review is well settled by the decision of the Calcutta High Court cited and relied upon Syed Zahiruddin Ahmed Baghadadi (Supra) which says that even if there is no power to review or recall an order, if such an order has been obtained by practicing fraud or concealment of fact and misrepresentation, there would be a power of review.
What is evident from reading the decisions of the Supreme Court cited by Mr. Mehul Shah, learned Sr. Counsel is that in absence of any power of review so provided in a Statute, when the power exercised is judicial, in absence of any power to recall, it cannot be so reviewed. The case of Naresh Kumar and Others (Supra), paragraph 13 thereof which reads as under Page 37 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021
C/CRA/162/2020 CAVJUDGMENT indicates that it is a settled law that a power of review can be exercised only when the Statute provides for the same.
Reading the provisions of the Waqf Act, the Court is of the opinion that the Board has no powers of exercising recall or review. It will also be in the fitness of things to reproduce paragraph Nos.12 to 14 in the case of Kala Bharti Advertising Vs. Hemat Vimalnath (Supra):
Naresh Kumar and Others (Supra):
"13. It is settled law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the concerned statute, such power of Review cannot be exercised by the authority concerned. This Court in the case of Kalabharati Advertising vs. Hemant Vimalnath Narichania (2010) 9 SCC 437, has held as under:
"...............
12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasijudicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction.
(Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar [AIR 1965 SC 1457] and Harbhajan Singh v. Karam Singh [AIR 1966 SC 641] .)
13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji [(1971) 3 SCC 844 :Page 38 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021
C/CRA/162/2020 CAVJUDGMENT AIR 1970 SC 1273] , Major Chandra Bhan Singh v. Latafat Ullah Khan [(1979) 1 SCC 321] , Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya [(1987) 4 SCC 525 : 1987 SCC (L&S) 491 :
AIR 1987 SC 2186] , State of Orissa v. Commr. of Land Records and Settlement [(1998) 7 SCC 162] and Sunita Jain v. Pawan Kumar Jain [(2008) 2 SCC 705 : (2008) 1 SCC (Cri) 537] this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction.
Kala Bharti Advertising Vs. Hemat Vimalnath (Supra) (Para 12 - 14 thereof):
"LEGAL ISSUES:
Review in absence of statutory provisions:
12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasijudicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultravires, illegal and without jurisdiction. (vide: Patel Chunibhai Dajibha v.
Narayanrao Khanderao Jambekar & Anr., AIR 1965 SC 1457; and Harbhajan Singh v. Karam Singh & Ors., AIR 1966 SC 641).
13. In Patel Narshi Thakershi & Ors. v. Shri Pradyuman Singhji Arjunsinghji, AIR 1970 SC 1273; Maj. Chandra Page 39 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT Bhan Singh v. Latafat Ullah Khan & Ors., AIR 1978 SC 1814; Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapur (U.P.) & Ors., AIR 1987 SC 2186; State of Orissa & Ors. v. Commissioner of Land Records and Settlement, Cuttack & Ors., (1998) 7 SCC 162; and Sunita Jain v. Pawan Kumar Jain & Ors., (2008) 2 SCC 705, this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction.
14. Therefore, in view of the above, the law on the point can be summarized to the effect that in absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/ modification/correction is not permissible. Case dismissed/withdrawn effect on interim relief:"
20. In the context of the Waqf Act itself, in the case of Alok Sahakari Gruh Nirman Samiti v. The Shia Central Waqf Board and other, The Allahabad High Court vide decision dated 4.5.2017 in Writ Civil No.6548 of 1998 considering the provisions of the Waqf Act, in context of Section 83, observed as under: (Relevant paragraph Nos.
19, 26 and 29).
"19. In answer to the argument on behalf of counsel for the petitioner that appeal is provided under the Act only for an order passed under Section 49B(4), no appeal could have Page 40 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT been filed against the order impugned by the petitioner under the Statute. Counsel for the Board has relied upon the judgment rendered by this Court in Writ Petition No. 3400 of 2002 (Najma Khatoon Vs U.P. Sunni Central Board of Waqf) on 18.11.2002 wherein this Court has held that even if, it is argued on behalf of the petitioner that no order has been passed under the Waqf Act, 1995 and therefore, the remedy of appeal is not available, the scope of Section 83 is very wide.
Under Section 83(1) of the new Act, the Tribunal can adjudicate "any dispute, question or any other matter" related to Waqf or Waqf property and the Tribunal will not only get jurisdiction when an order is passed under the Waqf Act, but also when a dispute arises relating to Waqf property as covered by Section 3(1) of the Act and in view of Section 83(5) of the Waqf Act, 1995 Waqf Tribunal has all powers of the Civil Court including power or passing of an interlocutory order and taking of evidence either through affidavits or through deposition on oath. Even the contention of the petitioner that the order has been passed in violation of principles of natural justice or lack of jurisdiction of the Controller to pass the order impugned can also be looked into by the Tribunal.
26. Having considered the rival submissions, this Court takes notice of the fact that Apex Court in the case of Board of Wakf, West Bengal Vs. Anis Fatma Begum & Anr., (Civil Appeal No.5297 of 2004) decided by the Supreme Court on 23.11.2010 reported in 2010 (12) Scale 323 considered the question of the remedy available under the Waqf Act, 1995, for deciding the disputes and held in paragraph Nos.10 to 22 as follows: "10. In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India.
11. It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statute which has constituted a Page 41 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT special Tribunal for deciding disputes relating to Wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to Wakfs were being filed in the courts in India and they were occupying a lot of time of all the Courts in the country, which resulted in increase in pendency of cases in the Courts. Hence, a special Tribunal has been constituted for deciding such matters.
12. Section 83 (1) of the Wakf Act, 1995 states, "83. Constitution of Tribunals, etc. (1) The State Government shall, by notification if the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under this Act and define the local limits and jurisdiction under this Act of each or such Tribunals."
13. Section 84 of the Act states, "84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision Whenever an application is made to a Tribunal for the determination of any dispute, question or other matter relating to a Wakf or Wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute".
14. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word `Wakf' has been defined in Section 3 (r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should Page 42 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT be agitated before the Wakf Tribunal.
15. Under Section 83 (5) of the Wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a fullfledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property.
16. We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83 (1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83 (2) refers to the orders passed under the Act, but, in our opinion, Sections 83 (1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83 (1) and 84 indicates.
17. We may clarify that under the proviso to Section 83 (9) of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as to the correctness, legality or propriety of the decision of the Tribunal. This provision make it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a Wakf or Wakf property should first approach the Tribunal before approaching the High Court.
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18. It is wellsettled that when there is a special law providing for a special forum, then recourse cannot be taken to the general law vide Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn. 2004, pp 133134).
19. In Chief Engineer, Hydel Project & Ors vs. Ravinder Nath & Ors., (2008) 2 SCC 350, this Court held that when the matter fell in the area covered by the Industrial Disputes Act, the Civil Court would have no jurisdiction. In the above decision the Court has referred to several earlier decisions on this point.
20. In view of the above, we are of the opinion that since the matter fell under the purview of the Wakf Act, only the Wakf Tribunal has jurisdiction in the matter, and not the Civil Court.
21. However, in view of the decision of this Court in Sardar Khan vs. Syed Najmul Hasan (Seth) & Ors., AIR 2007 SC 1447, the Wakf Act will not be applicable to suits/appeals/revisions/proceedings commenced prior to 1.1.1996 when the Wakf Act came into force.
22. Learned counsel for the Respondent, however, relied on the decision of this Court in Ramesh Gobindram vs. Sugra Humayun Mirza Wakf (2010) 8 Scale 698. In the aforesaid decision it was held that eviction proceedings can only be decided by the Civil Court and not by the Wakf Tribunal."
29. The power of review is not an inherent power but it is conferred under the Statute either specifically or by necessary implication. Neither the Act 1960 nor the Act 1995 conferred such power to the Respondent no.1 and / or Respondent No.2."
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21. What is therefore evident from the rival contentions at hand is whether the Board could have exercised power of review or recall in exercise of its administrative or quasi judicial power, be that as it may, reading of the provisions of the Waqf Act would indicate that the Board has no such power to review or recall its order once the same is passed, especially, in the facts of the case when it is passed in exercise of its quasi judicial power under Section 36 of the Act.
22. The second question therefore would need to be answered is that even if there is no power to review or recall an administrative and / or quasi judicial order, as from the catena of decisions cited by the learned counsels for the respective parties, what is evident is that such an order can be recalled or reviewed if it is seen that the same is obtained by fraud, concealment or by misrepresentation. The next question therefore then would be whether in the facts of the case, can it be said that the registration Page 45 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT obtained by the Respondent No.1 of Civil Revision Application No.162 of 2020 could be said to have been obtained by fraud.
23. Perusal of the application for registration would indicate that a forthright application for registration was made by the Applicant - Respondent No.1 of Civil Revision Application No.162 of 2020. In the application, it was very clearly said from the very beginning that Waqf Property is being given to manage and facilitate food and rest for the pilgrims who visit the Dargah. A declaration to that effect was made. Even the show cause notice given by the Board was to an extent based on recall of registration having found that the Board had been misled in granting registration. There was no allegation of fraud or misrepresentation. In context of this, it will be fruitful to refer to the decision in the case of Chief Engineer MSEB Vs. Suresh Raghunath Bhokare (Supra) and reproduce paragraph No.5 thereof which reads as under: Page 46 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021
C/CRA/162/2020 CAVJUDGMENT "5. The entire basis of the dismissal of the appellant depends upon the factum of the alleged misrepresentation attributed to the Respondent. The Industrial Court in its impugned order has noticed the fact that the Respondent was appointed in April, 1994 pursuant to the selection procedure followed by the competent authority and that he was selected by the panel of Selection Committee consisting of 6 members which included the very same Social Welfare Officer who had sent the proposal including the name of the Respondent for appointment. It also noticed the fact that the selection in question was made after an oral interview and the required test as also the medical examination. The Industrial Court also noticed the fact that the appointment of the Respondent was confirmed after 1 year period and thereafter the Respondent has been working without any complaint. Said Industrial Court also noticed the fact that the termination of the Respondent was based on a showcause notice issued on 5.7.1999 which was replied to by the Respondent on 17.7.1999 and the termination was made in a summary procedure permissible under Rule 90(b) of the Service Regulations. The Industrial Court after perusing the pleadings and the notice issued to the Respondent came to the conclusion that the alleged misrepresentation which is now said to be a fraud was not specifically pleaded or proved. In the show cause notice no basis was laid to show what is the nature of fraud that was being attributed to the appellant. No particulars of the alleged fraud were given and the said pleadings did not even contain any allegation as to how the appellant was responsible for sending the so called fraudulent proposal or what role he had to play in such proposal being sent. It also noticed from the evidence of Mr. Waghmare, Social Welfare Officer who sent the proposal before the Labour Court that he did not utter a single word as to whether the said supplementary list was ever called for by the Department concerned or not. Thus applying the basic principle of rule of evidence which requires a party alleging fraud to give particulars of the fraud and Page 47 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT having found no such particulars the Industrial Court came to the conclusion that the Respondent could not be held guilty of fraud. Said finding of the Industrial Court has been accepted by the High Court. Mr. Bhasme though contended that the fraud in question was played in collusion with the Social Welfare Officer and 2 other employees of the Board and action against said 2 employees of the Board has been taken, but by that itself we are unable to accept the argument of Mr. Bhasme that there is material to support the contention of the Board that the appellant had also contributed to making the misrepresentation at the time of applying for the job with the Board. In the absence of any such particulars being mentioned in the show cause notice or at the trial, attributing some overt act to the Respondent, we do not think the Board can infer that the Respondent had a role to play in sending a fraudulent list solely on the basis of the presumption that since Respondent got a job by the said proposal, said list is a fraudulent one. It was the duty of the Board to have specifically produced the material to prove that the Respondent himself had the knowledge of such a fraud and he knowingly or in collusion with other officials indulged in this fraud. Since there is no such material on record, on the facts of the instant case, the Industrial Court and the High Court have come to the right conclusion that the alleged fraud has not been established by the appellants, hence, this is not a fit case in which interference is called for. This appeal, therefore, fails and the same is dismissed."
24. Nothing in the show cause notice would indicate that fraud was alleged or was proved nor was the case of the Board that they had been tricked into passing an order. In the case of A.C. Ananthaswamy Vs. Borariah (dead) By LRs (Supra), the Hon'ble Supreme Court in Page 48 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT paragraph No.5 which reads as under has held that fraud is to be pleaded and proved.
"5. We do not find any merit in this appeal. Firstly, in the present case, Patel Chikkahanumaiah had moved an application under Order 9 Rule 13 CPC for setting aside the exparte decree on the ground of non service of summons in which fraud was not alleged. As stated above, Patel Chikkahanumaiah had moved R.A. No.54 of 1977 in which there was no such allegation. Secondly, the present suit has been instituted to set aside the ex parte decree on the ground that the decree was obtained by fraud and misrepresentation. Fraud is to be pleaded and proved. To prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representor guilty of fraud. To prove a case of fraud, it must be proved that the representation made was false to the knowledge of the party making such representation. [See: Pollock & Mulla on Indian Contract & Specific Relief Acts (2001) 12th Edition page 489]."
25. The level of proof in respect of fraud is very high. The show cause notice on hand does not indicate that there was an allegation of fraud. Even otherwise when the fraud in context of definition as relied upon by Mr. Shah, reading the provisions of Sections 17 and 18 of the contract act, in light of the decision in the case of Harjas Page 49 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT Rani Makhija Vs. Pushpa Rani Jain (Supra), paragraph Nos.20 and 21 read as under would indicate that even at best it was mere concealment or non disclosure. There was no intent to deceive and, therefore, it cannot be said that the registration that the Respondent No.1 of Civil Revision Application No.162 of 2020 wanted for its Trust was based on an application tainted by fraud. Therefore, even the contention of the learned Counsels for the Board as well as by Mr. Hakim that it was open for the Board to recall and review the order as the registration was obtained by fraud would not, in the facts of the case be applicable because in the case on hand, it is not the case where the initial application for registration which was granted by the Board and which was subsequently set aside by the Board in power of review or recall was in any manner tainted by fraud. So even otherwise, irrespective of the Board was exercising administrative and / or quasi judicial powers, the Board had no power to review or recall the order. The Tribunal Page 50 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021 C/CRA/162/2020 CAVJUDGMENT in the opinion of this Court is therefore right in saying that the Board could not have recalled its Order and cancelled the registration when it was so granted by the earlier order. The Board could not have recalled the order and, the Tribunal therefore rightly set aside the order of recall.
Harjas Rani Makhija Vs. Pushpa Rani Jain (Supra), paragraph Nos.20 and 21:
"20. We agree that when there is an allegation of fraud by nondisclosure of necessary and relevant facts or concealment of material facts, it must be inquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or nondisclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point.
21. What is fraud has been adequately discussed in Meghmala & Ors. v. G. Narasimha Reddy & Ors.[4] Unfortunately, this decision does not refer to earlier decisions where also there is an equally elaborate discussion on fraud. These two decisions are Bhaurao Dagdu Paralkar v. State of Maharashtra & Ors.[5] and State of Orissa & Ors. v. Harapriya Bisoi.[6] In view of the elaborate discussion in these and several other cases which have been referred to in these decisions, it is clear that fraud has a definite meaning in law and it must be proved and not merely alleged and inferred."Page 51 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021
C/CRA/162/2020 CAVJUDGMENT
26. Reading the provisions of Section 83 of the Act would indicate that if the Applicants of Civil Revision Application Nos.186 or 162 of 2020 were aggrieved by the order of registration of the Trust, the only resort they could have had was to filing of an Appeal under Section 83 of the Waqf Act.
27. As far as the locus of the Board to challenge its own order or the order of the Tribunal, is a question that is left open and is not decided in the facts of the present case.
28. Both the Civil Revision Applications therefore stand dismissed. Interim Relief stands vacated forthwith.
[ BIREN VAISHNAV, J. ] *** VATSAL FURTHER ORDER . Mr. Manish Shah, learned Counsel for the Waqf Board in Civil Revision Application No.162/2020 requests for stay of the order.
Such request is rejected.
[ BIREN VAISHNAV, J. ] *** VATSAL Page 52 of 52 Downloaded on : Sat Mar 20 04:03:58 IST 2021