Gauhati High Court
Md. Abdul Matin Barbhuiya vs Janab Ali Akbar Barbhuiya & Anr on 17 November, 2015
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
PRINCIPAL SEAT
1. CRP NO. 564 of 2012
Md. Abdul Matin Barbhuiya,
S/o: Late Farmuz Ali Barbhuiya,
Village-Kachudaram, Part-I,
P.S. Sonai, District :Cachar, Assam.
......Petitioner.
By Advocates:
Mrs. R. Choudhury
Ms. E. Yasmin.
-Versus-
1. Janab Ali Akbar Barbhuiya,
Mutawalli of HaziMasaraf Ali BarbhuiyaWakf Estate,
Village:Kachudaram, Part-I, P.S. Sonai,
District :Cachar, Assam.
2. On the death of Shri Ram Ratan Ramayat,
his disciple Shri Ramayan Das Ramayat,
Village & P.O: Kachudaram, Part-I, P.S. : Sonai, District: Cachar,
Assam.
.................. Respondents.
By Advocate:
None appeared
2. CRP NO. 565 of 2012 Md. Abdul Matin Barbhuiya, S/o: Late Farmuz Ali Barbhuiya, Village-Kachudaram, Part-I, P.S. Sonai, District :Cachar, Assam.
......Petitioner.
By Advocates:
Mrs. R. Choudhury Ms. E. Yasmin.CRP 564 & 565 of 2012 Page 1 of 17
-Versus-
1. Janab Ali Akbar Barbhuiya, Mutawalli of HaziMasaraf Ali BarbhuiyaWakf Estate, Village:Kachudaram, Part-I, P.S. Sonai, District :Cachar, Assam.
... ..Respondent.
2. The Settlement Officer, Silchar-5, Cachar, Assam.
3. The Executive Officer, The Wakf Board, Guwahati-781006, Kamrup, Assam.
4. On the death of Shri Ram Ratan Ramayat, his disciple Shri Ramayan Das Ramayat, Village & P.O: Kachudaram, Part-I, P.S. : Sonai, District: Cachar, Assam.
..................P roform a Respondents.
By Advocate:
None appeared :::BEFORE:::
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN Date of hearing : 18-08-2015.
Date of Judgment & Order :
JUDGMENT & ORDER(CAV)
Heard Mrs. R. Choudhury, learned counsel for the petitioner. None has appeared on behalf of the respondents, on call, though their names have been reflected in the Cause list.
As both the matters pertain to same subject-matter and facts, so both the cases are taken-up together for disposal by this common judgment.
2]. This Criminal Revision Petition No. 564 of 2012 have been preferred by the petitioner under Section 83 (9) Proviso of the Wakf Act, 1995, read with Article 227 of the Constitution of India thereby challenging the Judgment and Order dated 29.09.2012 passed by the learned Presiding Officer, Wakf Tribunal, CRP 564 & 565 of 2012 Page 2 of 17 Silchar in T.S. (Wakf) No. 2/2006 thereby allowing the Title Suit of the Plaintiff and has prayed to set aside the impugned Judgment and Order.
3]. The brief facts of the petitioner is that respondent No. 1 filed a suit in the capacity of Mutawalli of alleged Alhaj Moshar of Ali Barbhuiya Wakf Estate vide Title Suit No. 2/2006 before the learned Presiding Officer, Wakf Tribunal, Cachar at Silchar against the present petitioner as defendant No. 1 and other person, namely, Guruji (Ram Ratan Ramayat) praying for right, title, interest and confirmation of his possession and also for permanent injunction over the disputed land amounting to 22B, 13K, 14Ch. The petitioner, herein, contested the suit by filing a written statement along with defendant No. 2, Sri Ram Ratan Ramayat. On the death of Sri Ram Ratan Ramayat his disciple Sri Ramayan Das Ramayat wanted to contest the suit but he was not substituted by the plaintiff and the name of the defendant No. 2 was struck off. According to the pleadings in the Title Suit No. 2/2006, the Grandfather the Plaintiff (respondent, herein) Hazi Masraf Ali by executing a registered Wakf Deed No. 1945 dated 15.05.1939 dedicated his lands in different dags, Pattas totalling to 22B., 13K, 14Ch for public purposes and successors of the plaintiff was instructed to be the Mutawalli of the alleged Wakf Estate and since then the said land was under the possession of the said plaintiff but the defendant (petitioner, herein) by filing a false case before the Executive Magistrate and Settlement Officer clouded the right, title and interest of the plaintiff for which plaintiff as Mutawalli filed a Title Suit vide T.S. No. 2/2006 for declaration of right, title and interest and confirmation of possession over the alleged Wakf Estate.
4]. Case of the petitioner/defendant No. 1 is that in the Month of May, 2002 when the plaintiff/respondent along with staff of Assistant Settlement Officer, Sonai came to the Suit land and started to take measurement of the land as Wakf Land then the present petitioner (defendant No. 1 in the said case) and other co-pattadars raised objection and on their objection the revenue staff returned without measuring the land. Thereafter, the present petitioner came to know about the mutation done by the plaintiff in the name of alleged Alhaj Moshar of Ali Barbhuiya Wakf Estate over 22B, 13k over the disputed land in question including the land of the petitioner and Proforma defendant. They preferred a written objection before the Assistant Settlement Officer, Sonai Circle but it yielded no result and as such, the petitioner filed objection before the CRP 564 & 565 of 2012 Page 3 of 17 Settlement Officer, Cachar & Hailakandi District, Silchar, who vide his order dated 13.10.2003 allowed time to file written objection by the 2nd Party and finally by his order dated 29.11.2003 directed the Assistant Settlement Officer, Sonai Circle to correct the record and mutation granted in favour of the alleged Mutawalli, Ali Akbar Barbhuiya over 21B 5K 15Ch of land is cancelled and also directed to inform the Assam Wakf Board. The Settlement Officer also held that the plaintiff Ali Akbar Barbhuiya has got 0B 4K 12Ch land in his possession and if there is any wakf land then this 0B 4K 12Ch is the Wakf Land. That the alleged Mutawalli though contested the proceeding but did not adduce any evidence and the petitioner/defendant No. 1 adduced his evidence and duly cross-examined also. Thereafter, the alleged Mutawalli did not file any appeal before any appellate authority challenging the above order, hence it attained its finality.
5]. The petitioner also filed a complaint petition being No. 285M/2002 before the Executive Magistrate, Silchar and on the basis of the complaint, the learned Executive Magistrate has drawn up a proceeding U/S 145 Cr.P.C., and attached the land U/S 146 (i) of Cr.P.C. In the proceeding both parties filed written statement but the opposite party No. 1 did not adduce any evidence. The learned Executive Magistrate after examining all the evidences and documents held that the petitioner is in possession of the land and shall remain in possession of the disputed land until evicted in the course of law and the opposite party's claim for suit land as Wakf land may be agitated before the Wakf Board vide order dated 15.02.2005.
6]. Being aggrieved by the above order the respondent No. 1 preferred a revision before the Sessions Judge, Cachar, Silchar vide Crl. Rev. No. 26(1)/05 against the petitioner only on the ground that the Executive Magistrate caused irregularity and illegality by entertaining jurisdiction in respect of Wakf Property. The learned Sessions Judge vide Judgment and Order dated 20.12.2005 held that when there is apprehension of breach of peace relating to a dispute regarding possession of land, the Executive Magistrate has jurisdiction to draw up proceeding U/S 145 Cr.P.C. and to attach the land U/S 146 (i) Cr.P.C. irrespective of its nature, therefore, the learned Executive Magistrate has legally and properly passed the order and hence the revision petition is dismissed.
7]. Thereafter, the respondent No. 1 instituted the Title Suit vide T.S. (Wakf) No. 2/2006 before the learned Wakf Tribunal which was disposed on 29.09.2012 CRP 564 & 565 of 2012 Page 4 of 17 with an observation that the respondent No. 1/the plaintiff has right, title, interest and possession over 21B 5K 15 Chatakas of land covered by Dag No. 2/25/31/32/33/34/35/36 of 2nd R.S. Patta No. 107 of Pargona-Bonraj, Mouza- Kachudaram Part-I of Sonai Circle.
8]. That being highly aggrieved and dissatisfied with the aforesaid impugned judgment and order dated 29.09.2012 passed by the learned Presiding Officer, Wakf Tribunal, Cachar in T.S. (Wakf) No. 2/2006, the petitioner begs to prefer this present revision petition.
9]. The petitioner has challenged the findings on the ground that the learned Tribunal misconceived and misconstrued the Exhibit-A (order passed by Settlement Officer) which was passed after consideration of all the evidences and according to Exhibit-A there is only 0B 4K 12Ch land which remain as Wakf Land and hence the learned Tribunal had acted most illegally by refusing to accept the registered sale Deed so adduced by the petitioner in course of evidence. Moreover, the Petitioner has submitted that the plaintiff/respondent did not adduce any registered sale deed of his grandfather showing the source of title in that case and non-consideration of the registered sale deeds of the defendant No. 1 by the learned Tribunal also non-impleadment of necessary party on death of one of the defendants has resorted in denial of justice to the defendant No. 1/ (petitioner, herein) and hence in the interest of justice the impugned Judgment and order dated 29.09.2012 is liable to be set aside and quashed.
10]. Furthermore, it is contended that the learned Tribunal overlooked the evidence of plaintiff who himself stated that his father sold out some portion of the alleged Wakf land and though plaintiff stated that those lands were taken back by him but no deed of reconveyance was exhibited by the plaintiff and thus the finding of the learned Tribunal is liable to be set aside and quashed.
11]. Another Civil Revision Petition No. 565 of 2012 has been preferred by the petitioner under Section 83 (9) Proviso of the Wakf Act, 1995 read with Article 227 of the Constitution of India challenging the Judgment and Order dated 29.09.2012 passed by the learned Presiding Officer, Wakf Tribunal, Silchar in T.S. (Wakf) No. 2/2004 thereby allowing the Title Suit of the Plaintiff/respondent No. 1.CRP 564 & 565 of 2012 Page 5 of 17
12]. The brief facts, as narrated in the petition, is that the respondent No. 1 as plaintiff instituted a Title Suit No. 2/2004 before the learned Presiding Officer, Wakf Tribunal, Cachar at Silchar against the present petitioner as defendant No. 1, Sri G. K. Sinha, (Former Settlement Officer, Cachar & Hailakandi), Cheroori Road, now Bhakatpur as defendant No. 2, the Settlement Officer, Cachar and Hailkandi districts as defendant No. 3 and the Executive Officer, the Wakf Board as defendant No. 4, seeking a declaration that the order dated 29.11.2003 passed by the Settlement Officer, Silchar in the Misc. Case No. 196/2003 as null and void.
13]. The defendant No. 1(present petitioner) appeared and filed written statement submitting inter alia that one Sri Ram Ratan Das was also party in the above Misc. Case, hence, he is a necessary party and accordingly he is also filing this written statement jointly, which is required to be accepted. But Ram Ratan Das Ramayat was not impleaded on death of Ram Ratan Das, as disciple.
14]. It is the case of the plaintiff/respondent that his grandfather Hazi Masraf Ali vide a registered Wakf Deed No. 1945 dated 15.05.1939 dedicated his lands in different dags and pattas totalling 22B 13K 14Ch for public purpose. The plaintiff is the present Mutawalli of the alleged Wakf Estate. The entire land of the alleged Wakf Estate has been in continuous and uninterrupted possession of the Mutawalli and mutation was also granted in favour of the alleged Wakf Estate. But unfortunately the defendants by filing a false case vide case No. 290M/2002 and case No. 285M/2002 before the Executive Magistrate and Misc. Case No.; 196/2003 before the Settlement Officer, Cachar and by filing false petition before Wakf Board clouded the right, title and interest of the Plaintiff. Hence, the plaintiff filed T.S. (Wakf) No. 2/2004 for declaration of order dated 29.11.2003 passed by Settlement Officer in Misc Case No. 196/2003 is null and void and stated that in the month of May, 2002, while the plaintiff along with the staff of Assistant Settlement Officer, Sonai came to the suit land and started to take measurement of the land as Wakf land, then the defendant No. 1 and other co-pattadars vehemently objected and on such objection the revenue staff returned without measuring the land. Thereafter, on enquiry the defendants came to know about the mutation done by the plaintiff in the name of the alleged Alhaj Mosharaf Ali Barbhuiya Wakf Estate over 22B 13K land including the land of the petitioners and proforma respondent. The petitioner along with CRP 564 & 565 of 2012 Page 6 of 17 proforma opposite party No. 4 then filed written objection before the Assistant Settlement Officer, Sonai Circle but did not get any result. Finding no result the petitioners filed objection before the Assam Board of Wakf on 22.01.2003 which was received on same day and still remains pending. The petitioner then filed objection before the Settlement Officer, Cachar & Hailakandi Districts, Silchar who vide his order dated 13.10.2003 allowed time to file written objection by the 2nd Party and finally by his order dated 29.11.2003 directed the Assistant Settlement Officer, Sonai Circle to correct the record and mutation granted in favour of the alleged Mutawalli, Ali Akbar Barbhuiya over 21B 5K 15Ch of land is cancelled and also directed to inform the Assam Wakf Board. The Settlement Officer also held that the plaintiff Ali Akbar Barbhuiya has got 0B 4K 12Ch land in his possession and if there is any Wakf Land then this 0B 4K 12Ch is the Wakf Land. That the alleged Mutawalli though contested the proceeding but did not adduce any evidence, however, he cross-examined the witness(es) of the petitioner. Thereafter, the alleged Mutawalli did not file any appeal before the appellate authority challenging the above order, hence it attained its finality.
15]. Being aggrieved by the aforesaid order, the respondent No. 1 filed a Title Suit (Wakf) No. 02/2004 before the learned Wakf Tribunal against the present petitioner as defendant No. 1 & the defendant No. 2, Settlement Officer, as Defendant No. 3 and the Executive Officer of the Wakf Board as defendant No. 4 seeking a declaration that the order passed by the learned Settlement Officer is null and void. The learned Wakf Tribunal after going through all evidences and hearing arguments forwarded by both the parties held that the petition filed by the petitioner along with one Ram Ratan Das Ramayat was signed by only these two persons cannot be held to be a petition filed by other co-Sharers and hence the Settlement Officer cannot assume jurisdiction over that petition. Secondly, after enforcement of Wakf Act, 1995 in the State of Assam w.e.f. 22.07.2003 Wakf Tribunal is the only authority to dispose of any question relating to Wakf Land, hence the Settlement Officer has no jurisdiction to dispose the petition of defendant No. 1 and Ram Ratan Ramayat after enforcement of Wakf Act, 1995 and the respondent No. 1 submitted that the learned Tribunal thirdly held that the mutation in favour of plaintiff was granted by the S.D.C. on behalf of the Deputy Commissioner and as such the Settlement Officer does not have power to cancel the said mutation, hence the settlement Officer passed the order without jurisdiction and for that count the said order is null and void.
CRP 564 & 565 of 2012 Page 7 of 1716]. It has been further contended by the petitioner that the learned Tribunal overlooked the fact that the Settlement Officer passed the mutation order dated 29.11.2003 after going through the evidences as advanced by both the parties. Hence, in the interest of justice, the learned Tribunal's impugned Judgment and Order dated 29.09.2012 is liable to be set aside and quashed.
17]. As against the present petition, the respondent No. 1 did not file counter affidavit and only the respondent No. 2/Assistant Settlement Officer filed an affidavit-in-opposition wherein it has been submitted that though the Settlement Officer was made a party in T.S. No. 2/04 but no summons was served upon the Settlement Officer so the impugned Decree was passed in the aforesaid case without giving an opportunity of being heard. Hence, the impugned Judgment & Decree passed in T.S. No. 2/04 is liable to be set aside. Further, it has been contended that Wakf Tribunal has no jurisdiction to decide the matter in issue as the said Tribunal is not the appellate authority because as per the provisions of Assam Land and Revenue Regulation, only the Assam board of Revenue has the power and jurisdiction to decide the legality of order and judgement of Settlement Officer and not the Wakf Tribunal. The Settlement Officer is a competent authority having jurisdiction to set aside and cancel the order of his sub-ordinate officer i.e. S.D.C. as provided u/s. 151 of the Assam Land and Revenue Regulation. Moreover, the respondent No. 1 failed to produce any document or any evidence in support of his claim, therefore, the Decree passed by the Wakf Board is liable to be set aside and thus, it has been asserted that the order so passed in M.C. No. 196/03 passed by the learned Settlement Officer, holds good in the purview of law.
18]. If we arrange the sequence of facts from the pleadings of the parties in both the cases, it will be found that the petitioner herein came to know all about the Wakf Deed from the mouth of the respondent No. 1 in the month of May, 2002 while the revenue staff came to take measurement of the land. According to the petitioner, the portion of said land was sold to the father and uncle of the petitioner by the father of the respondent No. 1 far back and they are in continuous possession over the said land on the strength of sale deed executed. The petitioner herein apprehending threatening to the possession over the disputed land immediately lodged complaint before the Wakf Board in the year 2003 and also lodged complaint before the Assistant Settlement Officer and CRP 564 & 565 of 2012 Page 8 of 17 Settlement Officer, disputing the facts. The petitioner also lodged complaint before the Executive Magistrate on the basis of which a proceeding u/s. 145 of the Code of Criminal Procedure, 1973, has been drawn and the Court confirmed the possession of the petitioner over the disputed land and the revisional Court has also affirmed the order so passed by the Executive Magistrate.
19]. Now, according to the respondent No. 1, he is the Mutawalli of the Wakf land so executed by his grandfather Alhaz Moshoraf Ali Barbhuiya and he has been declared as Mutawalli by the Wakf Board so he has right, title and interest over the disputed land as has been declared by the Tribunal in T.S.(Wakf) No. 2/06. Again it has been assailed that the Settlement Officer has no jurisdiction to pass any order in respect of Wakf property so the said order is also illegal as has been held by the learned Tribunal in T.S. No. 2/04. At the time of hearing, none appears on behalf of the respondent to argue the case but I have gone through all the pleadings exchanged between the parties before the learned Court below and documents as has been referred in the evidence and also perused the judgment & orders as passed by the Settlement Officer, Executive Magistrate, Revisional Court, as well as Wakf Tribunal and the provisions incorporated in the Wakf Act, 1995, and the entire facts and circumstances of the case.
20]. It has been emerged from the plaint so filed by the respondent No. 1 before the Court below that the respondent No. 1 simply asserted that he is the successor and Mutawalli of the Wakf land/Estate so created by his grandfather and he has filed the suit in the capacity of Mutawalli of the Wakf property. In this respect, he has also exhibited the original Wakf Deed dated 31.05.1939 vide Ext.-1, and has also exhibited the copy of letter issued by the Secretary, Wakf Board, dated 10.04.1989 vide Ext.-2, whereby he has been appointed as provisional Mutawalli of the Wakf Estate so created by Moshoraf Ali Barbhuiya subject to the approval of the Assam Board of Wakf. Further, by Ext.-3, the Secretary of the Wakf Board has called for objection against the prayer of registration of the Wakf by the petitioner vide Memo. issued on 13.07.1988 and by Ext.-4, vide letter No. 06.07.1989, the said Secretary has directed the Deputy Commissioner to mutate the Wakf land in the name of the petitioner and in pursuance of which, the Circle Officer issued the Certificate vide Ext.-8, whereby the land measuring 21B-0.5K-15CH was recorded in the name of the petitioner. (In the last paragraph of the Certificate, it has a mention that on the basis of the CRP 564 & 565 of 2012 Page 9 of 17 petition filed by Ali Akbar Barbhuiya, the Certificate has been issued). Now, it transpires from the record and judgment of the learned Tribunal that basing upon all above documents, learned Tribunal has come to a finding that the respondent Ali Akbar Barbhuiya is the Mutawalli of the Wakf Estate created by his grandfather and the petitioner (respondent in the title suit) has no authority to claim the Wakf property as once a Wakf property, it is always the Wakf property and any sale, etc., of such Wakf property is void in law.
21]. In the aforesaid case, though the Wakf Board was made a party and notice was duly served but they never appeared before the Board and neither asserted or denied the documents so produced by the respondent herein. The respondent No. 1, in no way, proved the content of any document by examining any officer of the Wakf Board. It is well-settled that mere marking of a document as an Exhibit does not dispense with its proof. The principle find its place in a case between Salt Tarajee K him Chand & ors. V. Yelam arti Satyam & ors., reported in AI R 1971 SC 1865 . Even in case of production of certified copies of the documents, something more is required as per the Law of Evidence. As has been held by the Apex Court in LIC of India V. R am Pal Singh Bisen , reported in (2010) 4 SCC 491, even admission of a document in evidence does not amount to its proof, in other words, mere making of exhibit of a document does not dispense with its proof, which is required to be done in accordance with law. It was the duty of the petitioners to have proved the documents in accordance with law. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amounts to admission of contents but not its truth.
22]. In this context, some salient features of the Wakf Act, needs to be discussed as to how a Wakf Deed is to be registered by the Wakf Board and as to how Mutawalli is to be appointed.
As per Section 89 of the Wakf Act, 1995, no suit shall be instituted against the Wakf Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder until expiration of two months next after service of notice in writing has been delivered to the office of the Board stating about cause of action, etc., etc., and the plaint shall contain a statement that such notice has CRP 564 & 565 of 2012 Page 10 of 17 been so delivered or left in the office. The respondent No. 1 has filed the case before the Tribunal by violating the mandatory provisions for which the suit so filed by the said respondent is itself not maintainable.
On the next, as regards the procedure about registration of Wakf, has been prescribed under Chapter V of the Act which incorporated Section 36 to 43. As per Section 36, every Wakf whether created before or after the commencement of the Act, shall be registered at the Board and the application for registration shall be made by Mutawalli or given by his descendent or beneficiary of the Wakf. Such application needs to contain certain particulars as has been mentioned in sub-Sections (3) (4) and (5) of Section 36. Further as per sub-Section (7) of Section 36, on receipt of an application for registration, the Board, may, before the registration of the Wakf 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 Wakf property, the Board shall, before registering the Wakf, give notice of the application to the person administering the Wakf property and shall hear him if he desires to be heard. Again as per sub-Section(8) of Section 36, in case of Wakf created before the commencement of this Act, every application for registration shall be made within 3 months from such commencement. Thus, registration of every Wakf at the office of the Board is a sine quo non to its valid creation and every application for registration of Wakf shall be made within 3 months from the date of (a) the commencement of this Act, (b) the creation of Wakf, (c) establishment of Board, as the case may be.
23]. In the given case, admittedly, the Wakf was created in the year 1939 and since then it was not registered before the Wakf Board and suddenly, after 50 years, in the year 1988, the petitioner who is a descendent of the Wakf property, has applied for registration and in such eventuality, it was incumbent on the part of the Board to make necessary inquiries in respect of genuineness and validity of the application and correctness of the particulars when the application was not made by the person himself administering the Wakf property. It is to be noted that the Secretary to the Wakf Board has appointed the respondent No. 1 as provisional Mutawalli subject to approval of the Wakf Board. But there is absolutely no any other material to show that what sort of CRP 564 & 565 of 2012 Page 11 of 17 course of affairs was followed by the Wakf Board and whether approval was given by the Board for such appointment of Mutawalli of respondent No. 1. In view of such specific provision in the Act itself, the order so passed vide Ext.-2 cannot itself empower the respondent No. 1 to claim the Wakf property as his absolute property. Similar is the position while the Circle Officer issued the Certificate vide Ext.-8. The observation of the Circle Officer is also indicative of the fact that the said Certificate was issued on the application so filed by the petitioner (not on field verification). The Secretary to the Wakf Board also hurriedly appointed the respondent No. 1 as provisional Mutawalli without complying other mandates as has been embodied under Section 36 as illustrated above, whereas, the alleged Deed is 50 years old from the date of execution and the respondent No. 1 is a 3rd generation of the person who created the Wakf property. Further, the Board is required to maintain a register of Wakf as per Section 37 of the Wakf Act, with all particulars of the Wakf property as has been mentioned in sub-clause (a) to (f) which is not brought on record.
24]. As per Chapter II of the Wakf Act, the State Government is required to conduct survey of the Wakf by engaging additional Assistant Survey Commissioners as indicated by Section 4. The Survey Commissioners after such survey of Wakf, shall submit the report to the State Government and thereafter, the State Government notify the same about such Wakf properties and if necessary, the State Government may direct the Survey Commissioners to make second or subsequent survey of Wakf properties in the State after expiry of 20 years of previous survey report. The State Government, shall forward such copy of Survey Commissioners of the Board and thereafter, it is incumbent on the board to examine every survey report and publish a list of sunni Wakf or shia Wakf in the State(Section 5 of the Act). The power of Board has further been indicated in Sections 39 and 40 of the Act, to determine as to whether a Wakf has been in existence or has ceased to exist through an inquiry by Chief Executive Officer by requisite procedure and the decision of the Board on such aspect, shall be final unless revoked or modified by the Tribunal. A lots of formalities have to be incurred prior to registration of a Wakf by the Board but nothing sort has been proved in this case by the respondent that the Wakf has been duly registered by the Wakf Board and he has been duly appointed as Mutawalli.
CRP 564 & 565 of 2012 Page 12 of 1725]. It is also evident from Exts.-6 and 7 that the Government by Notification dated 07.10.1999 under Memo. No. RSS.460/99/6-A, has empowered the Director of Land Records and Survey, etc., as Survey Commissioners of Wakf and Addl. Deputy Commissioner, Revenue, of each districts of Assam, as Addl. Survey Commissioners within his jurisdiction for making survey of all Wakfs existing in the State for the purpose of Section 4 of the said Act with a direction to complete the survey in respect of Wakf within 1 year from the date of publication of the Notification in the official Gazette. There is also nothing on record to show what were the findings of Survey Commissioners regarding Wakf property created by the grandfather of respondent No. 1. It is also not understood as to how the authority of the Board can even issue such appointment of provisional Mutawalli while the Government itself contemplated to conduct survey of all the Wakf properties and the respondent No. 1 was directed to cooperate with the Circle Officer during such survey period to identify the Wakf property. In such backdrop, the documents so proudced by the respondent No. 1 and also relied by the Tribunal without having any sanction of law and cannot at all confer any right upon the said respondent No. 1 to claim the right, title and interest over the disputed Wakf property.
26]. It was the plea of the petitioner (respondent in the aforesaid cases), that certain portion of land measuring about 9B-14K-4CH, out of the Wakf property, was sold by the predecessor of the respondent and the respondent No. 1 in his evidence admitted that his father Surman Ali sold 7B-18K-2CH land out of the said Wakf property, of 2nd R.S. Patta No. 107 and though he has stated that the same was recovered but it was not proved. So in view of his own admission that part of the Wakf property was sold by his father, then certainly, the Wakf property cannot be held to be 21B-5K-15CH. The learned Tribunal has accepted the version of the respondent No. 1 that the petitioner could not prove that the said land was sold by his father but it is settled provision of law that things admitted need not be proved. In view of above, the findings of the Tribunal declaring right, title and interest in favour of respondent No. 1 over the whole Wakf property, is not maintainable.
27]. Similarly, the learned Tribunal has not taken into consideration about the findings of the Court of the Executive Magistrate while declaring possession of the petitioner over the disputed land which is also affirmed by the revisional CRP 564 & 565 of 2012 Page 13 of 17 Court. Over and above, the findings of the Settlement Officer cannot be interfered into by such Tribunal as per mandate of law. As provided under Section 154 of the Assam Land and Revenue Regulation, 1886, the formation of the record of rights for the preparation, or alteration of any document contained therein, is the exclusive right of the Revenue Department and the jurisdiction of the Civil Court(Wakf Tribunal is a Civil Court), is barred in respect of all matters as described in Section 154 of the Assam Land and Revenue Regulation, 1886. Such order of the Settlement Officer is subject to appeal to the Board of Revenue and they can set aside such order, if so required. All rights over land are vested in the State, and, therefore, no private rights over land can exist except those which are expressly recognized by the State. The respondent No. 1 though contested all above mentioned cases, but has not preferred any appeal against the order of Settlement Officer and has chosen the separate forum to challenge the order which is beyond the law.
28]. The learned Tribunal by referring into certain provisions of the Act, like Sections 83, 84, 85 of the Act, has held that a Tribunal is empowered to decide such matter of Wakf like a Civil Court under the Code of Civil Procedure as no other Civil Court can decide the question relating to Wakf property.
29]. Now, let us discuss what Section 83 provides:-
Section 83(1) : The State Government shall by notification in official gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question, or other matter relating to Wakf or Wakf property under this Act . ............
(2): Any Mutawalli person interested in a Wakf or any other person aggrieved by an order m ade under this Act or Rules, m ade thereunder, m ake an application w ithin the tim e specified in this Act to the Tribunal for determ ination of any dispute, question or any other m atter relating to W akf.
30]. Thus, the provision itself indicated that the Tribunal can assum e jurisdiction only w hen the M utaw alli or other beneficiaries w ere aggrieved by the order passed under the W akf Act , not otherw ise. But in this case, the respondent No. 1 has filed the case before the Tribunal challenging the order of Settlement Officer(which is not under the Wakf Act) and CRP 564 & 565 of 2012 Page 14 of 17 claiming right, title and interest over the Wakf property while there is no any proof(as discussed above) that the property has been actually registered as Wakf property by the Wakf Board and the respondent No. 1 has been approved as a Mutawalli of the said Wakf property. The reliance of the Tribunal upon the incomplete document so filed by the respondent No. 1, having no sanction of law, without proving any matters of record pertaining to Wakf Board is bad in law and not maintainable.
31]. The whole episode dragged by the respondent before the Tribunal is itself misconceived as without preferring any appeal against the order of the Settlement Officer, he has filed the T.S. No. 2/04 before the Tribunal which is devoid of merit. Similarly, even the order of Executive Magistrate has attained the finality by the affirmation of its order by the Revisional Court, he has filed the Civil Suit No. 02/06 claiming right, title and interest over the Wakf property is itself lack of merit as has been discussed above.
32]. That apart, from the findings of all orders so passed by the Settlement Officer, Executive Magistrate, Revisional Court, it transpires that all of them have referred the matter to the Wakf Board to decide the dispute as regards the Wakf property. The petitioner has also filed complaint before the Wakf Board in the year 2003 which is not yet adjudicated by the said Board, while it is incumbent upon the Board to examine such dispute as regards the Wakf property and to decide the same as per procedure as indicated in the Wakf Act itself. The respondent No. 1 can only approach to the Tribunal against such order of Wakf Board if so aggrieved and Tribunal will assume jurisdiction thereafter against the order so passed by the Board.
33]. The revisional authority of the High Court and the scope and ambit of proviso to Section 83 (9) of the Wakf Act, 1995, can be equated with Section 151 of the Code of Civil Procedure It is because under both these provisions, appropriate orders can be passed as the High Court may think fit to prevent miscarriage of Justice.
34]. The scope and ambit of Article 227 of the Constitution of India has been discussed in the case of Achutananda Baidya K um ar Gayen, (AI R 1997 SC 2077), wherein the Hon'ble Supreme Court has held that the powers conferred upon the High Court by Article 227 of the Constitution of India is not confined to CRP 564 & 565 of 2012 Page 15 of 17 administrative superintendence only over Courts and tribunals under its jurisdiction but it includes the powers of judicial revision as well. The relevant observation of the Hon'ble Apex Court is quoted hereinbelow:
"10. The pow er of superintendence of the High Court under Article 227 of the Constitution of I ndia is not confined to adm inistrative superintendence only but such pow er includes w ithin its sw eep the pow er of judicial review . The P ow er and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to High Court have done w hat they w ere required to do. Law is w ell settled by various decisions of this High Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assum ption or acting beyond its jurisdiction, refusal to ex ercise jurisdiction, error of law apparent on record as distinguished from a m ere m istake of law , arbitrary or capricious ex ercise of authority or discretion, a patent error in a m ere m istak e of law , arbitrary or capricious ex ercise of authority or direction, a patent error in procedure, arriving a finding w hich is perverse or based on no m aterial, or resulting in m anifest injustice. As regards finding of fact of the inferior Court, the High Court should not quash the judgm ent of the subordinate m erely on the ground that its finding of fact w as erroneous but it w ill be open to the High Court in ex ercise of the pow ers under Article 227 to interfere w ith the finding of fact if the subordinate Court cam e to the conclusion w ithout any evidence or upon m anifest m isreading of the evidence thereby indulging in im proper ex ercise of jurisdiction or if its conclusions are perverse."
35]. Again, in the case of K ishore K um ar K haitan and Anr. Vs. P raveen K um ar Singh., AI R 2006 SC 1474 : (2006) 3 SCC 312 , the Hon'ble Apex Court has spelt out the wider scope of Article 227 of the Constitution of India to correct jurisdictional error committed by the sub-ordinate Courts in the following words :
"12. The jurisdiction under Article 227 of the Constitution m ay be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. B ut w hen a court asks itself a w rong question or approaches the question in an im proper m anner, even if it com es to a finding of fact, the said finding of fact cannot be said to be one rendered w ith jurisdiction and it w ill still be am enable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order w ould also be a jurisdictional error liable to correction."
36]. In view of all above, the order of Tribunal passed in T.S. No. 2/06 and T.S. No. 2/04 are hereby set aside with a direction to the learned Tribunal to refer the matter to the Wakf Board to decide the dispute as regards the Wakf CRP 564 & 565 of 2012 Page 16 of 17 property so created by Hazi Mosharof Ali Barbhuiya Wakf Estate, village Kachudan Part-I, P.S. Sonai, District- Cachar, having regard to all the necessary provisions of law as embodied in the Wakf Act as discussed above. In that eventuality, the Board will give a finding on the matter within maximum outer limit of 6(six) months period from the date of receipt of the order from the Tribunal as the matter is a very old one. The learned Tribunal is accordingly directed to forward the matter immediately after receipt of LCRs, etc., to the Wakf Board.
37]. Registry is directed to return the LCRs forthwith to the learned Tribunal along with a certified copy of this order.
38]. With the above directions, both these civil revision petitions stand disposed of.
JUDGE P.K. SINHA CRP 564 & 565 of 2012 Page 17 of 17