Gujarat High Court
Land Acquisition Officer vs Boricha Vajubhai Verabhai on 24 September, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/CRA/96/2021 ORDER DATED: 24/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 96 of 2021
With
R/CIVIL REVISION APPLICATION NO. 90 of 2021
With
R/CIVIL REVISION APPLICATION NO. 91 of 2021
With
R/CIVIL REVISION APPLICATION NO. 92 of 2021
With
R/CIVIL REVISION APPLICATION NO. 93 of 2021
With
R/CIVIL REVISION APPLICATION NO. 270 of 2021
With
R/CIVIL REVISION APPLICATION NO. 271 of 2021
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RASHIDAHMED MOHAMMEDHUSEN SHAIKH
Versus
GUJARAT STATE WAQF BOARD
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Appearance:
MR MTM HAKIM with MR MAKBUL I MANSURI(2694) for the
Applicant(s) No. 1,2,3
MR DP KINARIWALA with FOUZAN N SONIWALA(8442) for the
Opponent(s) No. 2
MR MANISH S SHAH(5859) for the Opponent(s) No. 1
NOTICE UNSERVED(8) for the Opponent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 24/09/2021
COMMON ORAL ORDER
1. Challenge in Civil Revision Application No.96/2021 preferred under Section 83(9) of the Waqf Act, 1995 read with Section 115 of the Civil Procedure Code, 1908 is the order dated 27.01.2021 passed in Waqf Appeal No.33/2019, by which, the order dated 12.05.2018 passed in Change Report No.124/2018 Page 1 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 appointing the applicants herein as Mutawallis/ Trustees, has been quashed and set aside.
2. Challenge in Civil Revision Application No.90/2021 preferred under Section 83(9) of the Waqf Act, 1995 read with Section 115 of the Civil Procedure Code, 1908 is the order dated 27.01.2021 passed in Waqf Appeal No.43/2019, by which, Appeal filed by the respondent nos.2 to 6 is allowed and thereby order dated 25.02.2019 of merging "Madina Masjid"
into "Piran Bibima Saheb Qabrastan" has been quashed and set aside.
3. Challenge in Civil Revision Application No.91/2021 preferred under Section 83(9) of the Waqf Act, 1995 read with Section 115 of the Civil Procedure Code, 1908 is the order dated 27.01.2021 passed in Waqf Appeal No.37/2019, by which, Appeal filed by the respondent no.2 is allowed and thereby the order dated 08.02.2019 passed in Change Report No.26/2019, whereby the correction in the name of "Bibima Waqf" as per Revenue Records and incorporation and correction of the properties of the "Bibima Waqf" in PTR, has been quashed and set aside.
4. Challenge in Civil Revision Application No.92/2021 Page 2 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 preferred under Section 83(9) of the Waqf Act, 1995 read with Section 115 of the Civil Procedure Code, 1908 is the order dated 27.01.2021 passed in Waqf Appeal No.38/2019, by which, Appeal filed by the respondent no.2 is allowed and thereby the order dated 16.07.2019 passed in Change Report No.241/2019 increasing the number of Mutawallis/ Trustees and appointing six new Mutawallis/ Trustees, has been quashed and set aside.
5. Challenge in Civil Revision Application No.93/2021 preferred under Section 83(9) of the Waqf Act, 1995 read with Section 115 of the Civil Procedure Code, 1908 is the order dated 27.01.2021 passed in Waqf Appeal No.42/2019, by which, Appeal filed by the respondent no.2 is allowed and thereby the order dated 03.10.2019 passed in Change Report No.568/A/2019 increasing the number of Mutawallis/ Trustees and appointing ten new Mutawallis/ Trustees, has been quashed and set aside.
6. Challenge in Civil Revision Application No.270/2021 preferred under Section 83(9) of the Waqf Act, 1995 read with Section 115 of the Civil Procedure Code, 1908 is the order dated 09.06.2021 passed below application, Exh.25 in Waqf Appeal Page 3 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 No.4/2021, by which, the application filed by the applicants seeking adjournment of the said Appeal has been rejected and it is ordered to pay Rs.25,000/- each towards the cost to the respondent no.2 herein and the respondent - Board.
7. Challenge in Civil Revision Application No.271/2021 preferred under Section 83(9) of the Waqf Act, 1995 read with Section 115 of the Civil Procedure Code, 1908 is the order dated 29.06.2021 passed in Waqf Appeal No.4/2021, by which, the Appeal filed by the respondent no.2 herein is allowed and thereby the order dated 27.01.2021 passed in Change Report No.272/2019 has been quashed and set aside and thereby it is ordered to appoint the respondent no.2 herein as Mutawallis/ Trustee of the Trust.
8. Thus from the above facts, it is clear that the issue involved in all these Civil Revision Applications are connected and are with regard to Piran Bibima Qabrastan Waqf (hereinafter referred to as "Bibima Waqf" for short) and, hence, learned advocates appearing for the parties have made common submissions with regard to all these applications. Therefore, this common order is Page 4 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 passed.
9. The brief facts leading to filing of the present Civil Revision Applications are as under, 9.1 The Bibima Waqf is an ancient Waqf and was registered by Registration No.B-48 Ahmedabad before the Charity Commissioner. 9.2 The entire Revenue Survey No.505 admeasuring 15 Acre is the property of the Waqf, which include a Masjid known as "Madina Masjid", a Qabrastan, a Mausoleum of Bibima and other properties. However subsequently in the year 1970, Revenue Survey No.505 was divided into two parts i.e. Revenue Survey No.505/1 admeasuring 13.10 Acres and Revenue Survey No.505/2 admeasuring 1.90 Acres. Thereafter after coming into force of Town Planning Scheme No.16, Revenue Survey No.505/1 was given Final Plot No.5 having City Survey No.352-364, whereas Revenue Survey No.505/2 was given Final Plot No.6 having City Survey No.365-378.
9.3 It is stated that on 03.02.1975, the scheme for management of Bibima Waqf was framed by the Joint Charity Commissioner and as per the Page 5 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 said scheme, the appointment of the incoming Mutawalli/ Trustee was as follows, The number of the Trustees including the hereditary Trustee would be maximum 5 and minimum 3. The appointed Trustees under the scheme except for the hereditary Trustee should be good Muslims and having the interest in the Waqf.
If any of the appointed Trustees under
the scheme except for the hereditary
Trustee resigns, dies, remains out of
country for a period of more than 6
months without permission from the
Charity Commissioner; is convicted in an offence of moral turpitude; wants to resign as trustee; is declared insolvent; is unable to fulfill his responsibility as the Trustee in just and proper manner or is incapable of doing so; or is unwilling to do so then, in such cases, except for the hereditary trustee, new Trustees will be appointed as per column 7 and if such appointment Page 6 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 of the new trustee is not made within 3 months by the existing trustees unanimously; then in such cases after the expiry of 3 months, new Trustees will be appointed by the Charity Commissioner as per column 7 by passing an order in writing;
The incoming hereditary trustee under the scheme will be appointed from the family of Saiyed Jalaluddin Gulam Shah by the existing hereditary trustee by an instrument in writing or by Will during the lifetime of the existing hereditary trustee. If the existing hereditary trustee does not appoint the incoming hereditary trustee during his lifetime, then in such cases, the family of Saiyed Jalaluddin Gulam Shah will appoint a hereditary Trustee.
If the existing hereditary trustee does not appoint the incoming hereditary trustee during his lifetime and if the family of Saiyed Jalaluddin Gulam Shah also does not appoint the hereditary Page 7 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 trustee then in such cases the existing trustees may appoint any family member as hereditary trustee.
If such an appointment is not made due to any reason then in such cases the Charity Commissioner may appoint any family member of Saiyed Jalaluddin Gulam Shah as hereditary trustee.
9.4 As per the aforesaid scheme dated 03.02.1975, five Mutawalis/ Trustees were appointed. However, the said scheme was challenged by the hereditary Mutawalli, Tamizuddin Jalaluddin Mashadi before the City Civil Court, Ahmedabad by filing Civil Appeal, however, the said scheme was confirmed by the City Civil Court, Ahmedabad. Against which, the said Mutawalli, Tamizuddin Jalaluddin Mashadi preferred First Appeal No.166/A of 1996 before this Court and the scheme was confirmed by this Court.
9.5 It is stated that thereafter, the hereditary Mutawalli, Tamizuddin Jalaluddin Mashadi in collusion with other Mutawallis/ Trustees preferred Change Report No.80/1991 before the Page 8 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 Deputy Charity Commissioner, which was allowed. It is the case of the applicant that thereafter, no steps were taken nor any accounts were submitted by the concerned Mutawalis/ Trustee. It is further stated that out of five Mutawallis/ Trustees, Vali Mohammed Abdul Latif Isani and Tamizuddin Jalaluddin Saiyed did not make any effort to appoint new Mutawallis/ Trustees after the death of other three Mutawallis/ Trustees. Thereafter, Tamizuddin Jalaluddin Saiyed died on 13.11.2012 and the applicants came to know that Vali Mohammed Abdul Latif Isani also died, therefore, meeting of Namazis of Madina Masjid convened on 11.02.2018 and in the said meeting, the applicants were appointed as Mutawallis/ Trustees of Bibima Waqf. It is further stated by the applicants that now the respondent no.2 is claiming appointment as hereditary Mutawalli, who did not take any steps before the respondent - board after the death of his father i.e. Tamizuddin Jalaluddin Saiyed.
9.6 It is also the case of the applicants that Page 9 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 thereafter, Change Report No.124/2018 was filed before the respondent - Board under Section 42 of the Waqf Act and in pursuance thereto, the respondent - Board issued notice to the Mutawallis/ Trustees as existing on their PTR at the address mentioned in the PTR, however, the said notice came back as unserved/ served but no objections were filed to the said change report. Thereafter, the said change report was allowed and the applicants are appointed as Mutawalis/ Trustees.
9.7 It is further stated that thereafter, the respondent no.2 filed Waqf Appeal No.33/2019 challenging the order of the respondent - Board on the ground that one Mutawali i.e. Shri Vali Mohammed Abdul Latif Isani is alive and, therefore, the applicants do not have any right to file change report.
9.8 At this stage, it is stated that the said Vali Mohammed Abdul Latif Isani is not joined as party in the said Appeal. After the appointments of the applicants as Mutawallis/ Trustees, different change reports have been Page 10 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 submitted and the change report submitted by the applicants came to be allowed, whereas the change report submitted by the respondent no.2 was rejected. Against the said orders, the respondent no.2 filed different Appeals before the Waqf Tribunal.
9.9 However, the Waqf Tribunal passed impugned orders, by which, the Appeals filed by the respondent no.2 herein came to be allowed, which led to filing of the present Civil Revision Application Nos.96 & 90 to 93 of 2021 before this Court.
9.10 It is stated that during the pendency of the Appeals, the respondent no.2 herein preferred Chnage Report No.272/2019 before the respondent - Board on 22.04.2019, which was rejected by the respondent - Board on 27.01.2021. Against which, the respondent no.2 filed Appeal No.4/2021 before the Waqf Tribunal.
9.11 In the said Appeal, when the applicants had submitted an application for adjournment, it was rejected with cost of Rs.50,000/-. Against the said order, Civil Revision Page 11 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 Application No.271/2021 has been filed. 9.12 Thereafter by an order dated 29.06.2021, the Waqf Tribunal allowed Appeal No.4/2021 filed by the respondent no.2 herein and thereby appointed him as Mutawalli/ Trustee of the Bibima Waqf.
10. Heard learned advocate, Mr. M.T.M. Hakim assisted by learned advocate, Mr. Makbul Mansuri for the applicants, learned advocate, Mr. Manish Shah for the respondent no.1 and learned advocate, Mr. D.P. Kinariwala assisted by learned advocate, Mr. Fouzann Sonwala for the respondent no.2.
11. Learned advocate, Mr. M.T.M. Hakim appearing for the applicants has made following submissions, 11.1 It is contended that the Bibima Waqf was not being managed since 1975 and earlier Mutawallis/ Trustees were believed to have been expired as they were not seen or heard for more than 43 years and, hence, they were presumed to have died, therefore, other Mutawallis/ Trustees came together for the management and affairs of the Bibima Waqf and to protect the interest of the beneficiary of the Bibima Waqf.
Page 12 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 11.2 It is contended that when the Change Report was filed in the year 2018, as per the scheme of Bibima Waqf, one post for hereditary Mutawalli/ Trustee was kept vacant and as it was felt that more persons should be made Mutawallis/ Trustees for the better administration of the Bibima Waqf, number of Mutawallis/ Trustees was increased to 21. 11.3 It is contended that in the record of the Bibima Waqf (PTR), the particulars with regard to the lands occupied by the Bibima Waqf were reflected as per the old record and, hence after following due procedure, those records were corrected and as per corrected records, Final Plot numbers and City Survey numbers were added in the record. 11.4 It is contended that one of the properties of the Bibima Waqf i.e. Madina Masjid was segregated and was separately registered and, hence after following due procedure, the said property was also restored as the property of the Bibima Waqf.
11.5 It is further contended that the applicants, in good faith, had taken all steps and Page 13 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 efforts to protect and manage the Bibima Waqf, however, bonafide error had taken place, whereby out of five Mutawallis/ Trustees, one Mutawali was wrongly presumed to be dead, however upon realizing their mistake, it was immediately corrected. It is further contended that the appointment of hereditary Mutawalli was kept vacant, therefore, bonafides of the applicants on that count are also evident from the record. 11.6 It is contended that the respondent no.2 has been found to have indulged into illegal transactions of Waqf properties and mutation of Waqf properties, which were made in the name of the respondent no.2 and his family members. It is also submitted that even after the death of the father of the respondent no.2 on 13.11.2012, the respondent no.2 did not take any step for the appointment as hereditary Mutawalis till 2019.
11.7 It is contended that the Waqf Tribunal has committed an error by allowing all the Appeals only on the ground that misrepresentation/ misstatement was made by Page 14 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 the applicants about the death of one of the Mutawalis viz., Vali Mohammed Abdul Latif Isani and, thereafter, all the orders were fraudulently obtained.
11.8 It is further contended that the said Vali Mohammed Abdul Latif Isani has not challenged any order of the respondent - Board and he was not made party in any Appeals filed by the respondent no.2 before the Waqf Tribunal.
12. On the other hand, learned advocate, Mr. Kinariwali appearing for the respondent no.2 has made following contentions, 12.1 It is contended that the Waqf Tribunal has not committed any error while passing impugned orders and, therefore, this Court may not exercise the revisional jurisdiction. 12.2 It is contended that in the prescribed form of change report of the respondent - Board, it is specifically mentioned that the death certificate of any deceased Mutawalli is required to be attached along with change report, however, the applicants did not attach the death certificate of the concerned Mutavalli/ Trustee and by declaring all five Page 15 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 Mutawallis/ Trustees as dead, the report was submitted and the said report was allowed by the respondent - Board. It is submitted that one original Mutawalli/ Trustee is alive, inspite of that, misstatement was made in the affidavit and thus, fraud was committed by the present applicants and thereby obtained order from the respondent - Board and thus, the Waqf Tribunal has allowed the Appeals filed by the respondent no.2 herein. 12.3 It is further contended that the Waqf Tribunal has observed that all five notices issued to the Mutawallis/ Trustees are sent on same address of hereditary Mutawallis but no details were provided by the respondent no.1. The respondent - Board has declared the change report as undisputed and passed an order of appointment of the applicants in the Waqf. It is contended that subsequently, the change reports are filed by the applicants and carried out amendment in the scheme of the Waqf to increase the strength of Mutawallis/ Trustees but the same was done on the basis of the order passed in Change Page 16 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 Report No.124/2018.
12.4 Learned advocate has also referred to the provisions contained in Sections 3(i), 3(k), 3(k)(ii), 3(r)(iii), 32, 69 and 83(2) of the Waqf Act in support of his submissions. 12.5 Learned advocate has also placed reliance upon the decisions rendered by the Hon'ble Supreme Court in case of Nidhi Kaim & Anr. Vs. State of Madhya Pradesh & Ors. rendered in Civil Appeal No.1727/2016 and also placed reliance upon the order dated 03.03.2020 passed in Special Civil Application No.10692/2018 and allowed matters, wherein the Hon'ble Supreme Court has held that the Courts of law should not perpetuate the fraud by entertaining the petition on behalf of the petitioners, who are the beneficiaries of the fraud.
13. Thus raising above contentions by learned advocate for the respondent no.2, it is urged that these applications be dismissed.
14. This Court has considered the submissions canvassed by learned advocates appearing for the parties and have also perused the material placed Page 17 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 on record.
15. It is not in dispute that after 1991, the audited accounts were not submitted to the Charity Commissioner or to the respondent - Board with regard to Waqf in question. Out of five Mutawallis/ Trustees in the Waqf in question, one Mutawali is hereditary Mutawalli. It is also not in dispute that the father of the respondent no.2 viz., Tamizuddin Jalaluddin Saiyed died on 13.11.2012, whereas another Mutawalli viz., Vali Mohammed Abdul Lati Isani did not appoint any Mutawali/ Trustee after the death of other three Mutawallis/ Trustees. It is also reflected from the record that the family members of hereditary Mutawalli i.e. Tamizuddin Jalaluddin Saiyed also did not take any steps for the appointment of hereditary Mutawalli. Further as stated above, Namazis of Madina Masjid and concerned persons related to Bibima Waqf convened a meeting on 11.02.2018 and in the said meeting, the applicants were appointed as Mutawallis/ Trustees of Bibima Waqf and, thereafter, Change Report No.124/2018 was submitted before the respondent - Board. No doubt in the affidavit filed by the applicants, it Page 18 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 is stated that all Mutawallis have expired though one of the Mutavallis, Vali Mohammed Abdul Latif Isani is alive. However, it is the specific case of the applicants that it was a bonafide mistake on the part of the applicants. Further, it is revealed from the records that when the applicants came to know about the fact that the said Mutawalli, Vali Mohammed Abdul Latif Isani is alive, they immediately submitted another report before the respondent - Board, which was allowed by the respondent - Board and thereby once again, name of said Vali Mohammed Abdul Latif Isani is restored as Mutawallis in the Waqf in question. Further, the said Vali Mohammed Abdul Latif Isani has not challenged any of the orders passed by the respondent - Board by filing any Appeal before the Waqf Tribunal. The respondent no.2 filed different Appeals before the Waqf Tribunal only after the present applicants were appointed as Mutawallis/ Trustees pursuant to the meeting convened on 11.02.2018. Thus it is not in dispute that the respondent no.2 also had not taken any steps till 2019 though his father, Tamizuddin Jalaluddin Saiyed, who is hereditary Mutawallis/ Trustee, Page 19 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021 died in the year 2012.
16. It is also required to be noted at this stage that whether the respondent no.2 is having locus to file Appeal before the Waqf Tribunal or not, is also required to be examined in detailed.
17. So far as Civil Revision Application No.270/2021 is concerned, it is the specific case of the applicants that when the notices were issued by this Court in this matter, assurance was given by the concerned respondent that the orders impugned will not be implemented and, hence, the applicants filed an application, Exh.25 seeking adjournment of the proceeding of Waqf Appeal No.4/2021 as other Civil Revision Applications related to the Bibima Waqf are pending before this Court, which has been dismissed by the Waqf Tribunal by imposing cost of Rs.50,000/-. Therefore, this Court is of the prima facie view that the Waqf Tribunal could not have imposed cost of Rs.50,000/-. Even learned advocate for the respondent no.2 has also fairly submitted that if the order imposing cost by the Waqf Tribunal is set aside, the respondent no.2 has no serious objection.
Page 20 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021 C/CRA/96/2021 ORDER DATED: 24/09/2021
18. Thus in the facts of the present case, this Court is of the view that the issue involved in the present applications requires detailed hearing and all these applications cannot be dismissed at threshold.
19. Hence, Rule returnable on 9th December, 2021.
Till final hearing and disposal of all these Civil Revision Applications, the impugned orders in all Civil Revision Applications passed by the Waqf Tribunal are hereby strayed.
(VIPUL M. PANCHOLI, J.) Gautam Page 21 of 21 Downloaded on : Fri Oct 29 23:14:18 IST 2021