Gujarat High Court
Hazrat vs State
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
SCA/12350/2011 46/ 46 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12350 of 2011
With
CIVIL
APPLICATION No. 4702 of 2012
In
SPECIAL
CIVIL APPLICATION No. 12350 of 2011
With
CIVIL
APPLICATION No. 9587 of 2011
In
SPECIAL
CIVIL APPLICATION No. 12350 of
2011
=========================================
HAZRAT
MOULANA MEHBUB DARGAH MASJID AND QABARASTAN TRUST & 1 -
Petitioners
Versus
STATE
OF GUJARAT THRO PRINCIPAL SECRETARY & 4 - Respondents
=========================================
Appearance :
MR
MTM HAKIM for Petitioners : 1 - 2
MR HARDIK SONI AGP for
Respondents : 1 - 3
NOTICE SERVED for Respondent : 1
MR IH SYED
for Respondent : 4
MR VISHAL K SEVAK for Respondent :
5
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 25/04/2012
&
26/04/2012
ORAL
ORDER
The petitioners, by way of this petition, have approached this Court under Articles 226 and 227 of the Constitution of India, with the following prayers:
"(A) This Hon'ble Court may be pleased to quash and set aside the impugned actions and letter dated 26/7/2011, order dated 8/8/2011 and order dated 12/8/2011 passed by the respondent No.4-Gujarat Wakf Board and also quash and set aside the order dated 12/8/2011 passed by the respondent No.2.-Collector, Patan. Further this Hon'ble Court may also be pleased to quash and set aside the actions of the respondent No.3-Mamlatdar, Patan of putting up the lock on the property of the Wakf denying complete entry to the petitioners and the beneficiaries for religious observances and rituals.
(B) This Hon'ble Court may be pleased to direct the respondents to immediately and forthwith remove the lock from the main gate of the property of the Wakf-Trust and in any manner depriving the petitioners and the beneficiaries of the Wakf-Trust from performing religious observances and rituals in the property of the Wakf-Trust i.e. Dargah, Qabrastan and Masjid.
(B-1) This Hon'ble Court may be pleased to quash and set aside order dated 23/8/2011 passed by the respondent No.4 Wakf Board appointing Mujavar.
(C) Pending admission, hearing and till final disposal of present petition this Hon'ble Court may be pleased to stay the implementation, operation and enforcement of the impugned actions and letter dated 26/7/2011, order dated 8/8/2011 and order dated 12/8/2011 passed by the respondent No.4-Gujarat State Wakf Board and also be pleased to stay the execution, implementation and operation of the order dated 12/8/2011 passed by the respondent No.2-Collector, Patan.
(D) Pending admission hearing and till final disposal of this petition this Hon'ble Court may be pleased to direct the respondents, particularly respondent no.3-Mamlatdar, Patan to remove the lock from the main gate of the property of the Wakf-Trust and in any manner depriving the petitioners and the beneficiaries of the Wakf-Trust from their religious observances and rituals in the property of the Wakf i.e. Dargah, Qabrastan and Masjid.
(D-1) Pending admission, hearing and till final disposal of the present petition this Hon'ble Court may be pleased to stay the execution, implementation and operation of the order dated 23/8/2011 and further direct that instead of newly appointed Mujavar, the petitioner No.2-Jamalluddin Fakhtruddin Faruqi shall be permitted to continue as the Mujawar.
(E) This Hon'ble Court may be pleased to award the costs of present petition.
(F) This Hon'ble Court would be pleased to grant such other and further relief/s as may be deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice."
Thus, essentially this petition is directed against the order dated 08.08.2011 and consequent action taken thereupon by the respondent No.4.
Brief facts leading to filing this petition need to be set out as under
for appreciating the controversy.
The petitioner no.1 claims to be sole trustee of the trust known as "Hajrat Maulana Mehbob Ni Dargah Masjid Ane Kabrastan"
(hereinafter referred to as the "Wakf" for the sake of brevity) and the petitioner No.2 claims to be "Care-Taker Mujavar" of Dargah. The trust was registered with the authorities way back in the year 1953 and since then, the trust continues its activities. After coming into force of the Wakf Act, 1995, the trust i.e. Wakf started being governed by the provisions of the Wakf Act, 1995.
The petitioner No.1 on account of her age and ailment resigned and her sons came to be appointed as Trustees and accordingly, the newly appointed trustees under the leadership of the petitioner No.2 approached the Wakf Board for recording and entering their names as Trustees along with the name of their mother-petitioner No.1. The Wakf Board issued communication dated 08.05.2003 addressed to the petitioner No.1 and others mentioned thereunder referring to their application informing them that the zerox copy of accompanying documents were not complete therefore, they should support their application with the family tree or mantle passed on to her from her ancestors, other documents and asking them to remain present on 22.05.2003. The documents in the form of minutes of meeting of Wakf Board dated 22.07.2003 are also available on the record indicating that the representative of Wakf Board visited the Dargah and inquired of the income of Dargah. One more communication emanating from the petitioners is on or behalf 01.09.2003 in respect of the change report only. Thereafter, only on 26.07.2011, the petitioner No.2 received communication from the Wakf Board-respondent No.4 calling upon him to fulfill the requirement mentioned thereunder and furnish information in respect of the change report submitted by them. The petitioner No. 2 was informed formed that accounts from the date of wakf's registration till date , as required under section 46 of the Wakf Act were not submitted, the certified copy of the death certificate of Jamaluddin Kutbuddin were not furnished, documents supporting his appointment at Mujavar , information in respect of pending court cases etc. In that notice under Item No.6, a query is raised as to whether the piece of land of survey Nos.911, 915 and 936 were registered by the petitioners and those who applied for change report. The last paragraph of the communication is cast as a notice under Rule-14 of the Gujarat State Wakf Rules, 1996, (hereafter referred to as Gujarat Rules) calling upon them to reply to the notice within seven days failing which further action would be taken in accordance with law. No reply was furnished by the petitioner no. 2. The petitioner no. 2 thereafter, received order dated 08.08.2011 by speed post issued by the respondent No.4 informing the petitioner No.2 that there was a breach of Section 64 of the Wakf Act, 1995 (hereinafter referred to as the "Wakf Act" for the sake of brevity), however no reply was given pursuant to the notice dated 26.07.2011. As per the provisions of Section 46 of the Wakf Act, the Wakf's accounts were not regularly audited and during the visit of the Wakf Board member to the property, it was found that the property was not maintained properly and it was in dilapidated condition and it was dirty. It was also mentioned therein that in fact, as per correct position, the Survey Nos.935, 911, 915 and 936 were included in Wakf property and recorded as such, but presently there appears to be only Survey No.935 shown to be a Wakf property therefore, Board was interested in respect of other survey number than Survey No.935 so that appropriate action could be taken against responsible for tampering with the wakf property. The petitioner No.2 was thereby informed that as he was not carrying out administration of Wakf properly properly , as could be ascertained in preliminary inquiry under the provisions of Section 67 of the Wakf Act. It is decided that the Collector, Patan be appointed as administrator hence on receipt of this notice, all documents pertaining to Wakf be handed over to the Collector and Collector's term as administrator would be for one year. This communication is impugned in this petition, as stated hereinabove and the consequent actions taken pursuant thereto are also subject matter of challenge in this petition. The Collector was addressed a letter by the petitioner No.2 on 10.08.2012 asking him to stay his hands, as the petitioners were desirous of approaching the Court, the petitioners also addressed a communication to the Chairman of Wakf Board dated 11.08.2011 explaining the lack of justification in issuing such a drastic order of 08.08.2011 and inability for not replying earlier. The Wakf Board-respondent No.4 issued communication on 12.08.2011 addressing the Collector, Patan substituting the word "Patan Collector"
and placed "Mamlatdar, Patan" in the order dated 08.08.2011. Thus, the Mamlatdar, Patan came to be appointed as Administrator of the Wakf Board. The Collector, Patan issued letter on 12.08.2011 to the petitioner No.2 calling upon him to hand over the Wakf property, cash and other to the Mamlatdar, Patan, pursuant to the Wakf Board's order dated 12.08.2011, this letter was replied indicating that the petitioner No.2 is not a Trustee. The Mamlatdar applied lock on the place and put up public notice to prepare at large indicates that the Administrator is resumed by the Mamlatdar under the Wakf Board's order. The Mamlatdar-Administrator of the trust appointed one Divan Mahbubshah Mohammadshah vide order dated 23.08.2011, who resigned on account of alleged harassment and his incapacity to function and thereafter, Wakf Board appointed one Shri Abdul Hamidkhan Masumkhan Pathan, who also resigned and Wakf Board appointed 3rd one i.e. Yusufbhai Sindhi the newly added respondent no.6.
Learned advocate for the petitioners invited this Court's attention to the provisions of the Wakf Act and the Gujarat Rules framed thereunder and contended that the impugned order is patently illegal and therefore, the same as well as action taken pursuant thereto deserves to be quashed and set aside.
Learned advocate for the petitioners contended that the change report was awaiting approval or action by the Competent Authority and till then, the petitioner no.1 remained trustee and therefore, there ought to have been notice to her in compliance with the principles of natural justice. No notices whatsoever have been served upon the petitioner No.1 qua so-called breach of Section 64 of the Wakf Act or action proposed so far as Rule 14 of the Rules is concerned. The notice is addressed to the petitioner no.2 only, who was acting as "Care-Taker Mujavar", the absence of notice to the petitioner No.1 renders the order impugned and action taken pursuant thereto, an action without authority of law and therefore, it may not inure in favour of anyone nor would it entail any right or privilege in favour of any one. The order passed without compliance with the principles of natural justice is ordered per-se illegal and therefore, such order and action pursuant thereto, would be nullity.
Learned advocate for the petitioners relying upon the decision of the Apex Court in the case of Mohammedia Co-op. Building Society Ltd. Vs. Lakshmi S. Co-op. Building Society Ltd. and others reported in AIR 2009 SC (Supp) 590, contended that there exists marked difference between the duties to be performed by Mujavar and those Mutawalli. If one looks at the provisions of Wakf Act, Mujavar cannot take place of Mutawalli Committee and Mutawalli may perform duties of Mujavar also, if one considered this definition of Section 3(i) of the Wakf Act.
Learned advocate for the petitioners heavily relied upon the definition of Section 3(i) of the Wakf Act and contended that the entire Wakf Act do not independently treat Mujavar to be an entity and/or post holder to be dealt with by the Wakf Board in any manner except providing for protection of ancestral rights, title or privileges inuring in favour of Mujavar, so as not to disturb the same despite removal of committee or Mutawalli , as could be seen from provision of Wakf Act. In other words, the Mujavar cannot be addressed notices which are meant to be addressed to the Mutawalli or Managing Committee in respect of the duties to be performed and deficiencies, if any found so as to initiate action pursuant thereto.
Learned advocate for the petitioners, thereafter, contended that in the instant case, there existed no ground and/or eventuality, which would have justified issuance of notice under Section 64 or Rule 14 of the Rules and that too, to the petitioner no.2. Learned counsel for the petitioners without prejudice to the rights and contentions, that there exists no notice to petitioner no.2 and therefore, the entire act, order and subsequent acts stood vitiated in addition thereto, submitted that even if one presumes that there was notice to petitioner no.1, as the notice was served upon "Care-Taker Mujavar", without conceding, then also on merits, one can establish that there existed no ground, much less, any justification for issuance of the same. The notice dated 26.07.2011 contains allegation with regard to breach of provision of Section 46 of the Act, but that could not have been made basis for any consequent action without following due procedure of law.
Learned advocate for the petitioners while answering the preliminary objection raised by the learned advocate for respondent no.4, contended that the judgment relied upon by the respondent no.4's advocate, is of no avail to justify the contention with regard to the non maintainability of the petition under Articles 226 and 227 of the Constitution of India. The judgment, which is heavily relied upon, is the decision in case of Board of Wakf, West Bengal Vs. Anis Fatma Begum reported in (2010) 12 SCALE 323 : 2010 (7) Supreme 1059, is sought to be distinguished on account of the fact that the facts in that case were absolutely different than the facts of the present case. The Apex Court was not dealing with the question of maintainability of writ petition under Article 227, as could be seen from the facts of that case nor was there any discussion with regard to exercise of power under Section 67 of the Wakf Act, which in terms prohibits Tribunal from issuing any interim relief and orders when power under Section 67 of the Act are exercised.
Learned advocate for the petitioners relying upon the flowing decisions:
(i) In case of State of H.P. And Others Vs. Gujarat Amubja Cement Ltd.
and another, reported in AIR 2005 Supreme Court 3936.
(ii) In case of Dayaram Vs. Sudhir Batham And Others reported in (2012) 1 Supreme Court Cases 333
(iii) In case of Zonal Manager, Central Bank of India Vs. Devi Ispat Ltd. And Others, reported in (2010) 11 Supreme Court Cases 186.
(iv) In case of Syed Maqbool Ali Vs. State of Uttar Pradesh & Anr., reported in AIR 2011 Supreme Court 2524.
(v) In case of Srikant Kashinath Jituri and Others Vs. Corporation of the City of Belgaum, reported in AIR 1995 Supreme Court 288, Contended that in view of these unequivocal findings and observations and law laid down by the Apex Court, the petition cannot be said to be not maintainable and/or petitioners cannot be relegated to the remedy of approaching the Tribunal under Wakf Act. The action of the respondent is per se illegal and, therefore, the petitioners may not be relegated remedy of approaching Tribunal, which cannot be said to be an efficacious remedy, as there is expressed statutory provision against granting of any interim order so far as power exercised and orders made under Section 67 of the Wakf Act, is concerned.
Learned advocate for the petitioners further submitted that the applicants in Civil Application No.9587 of 2011 are not required to be joined as party respondents, as they are not necessary or proper parties nor any rights of theirs' is likely to be affected by decision of this court in this matter. The order impugned is in no way affecting them or inuring in their favour. Their claim in the Trust and Dargah, if any, is being pursued by them as per their own say in independent proceedings namely, Regular Civil Suit No. 156 of 2011 pending before the Court of Senior Civil Judge, Patan, wherein no prohibitory orders or even interim orders have been issued. The applicants of that application, therefore, have no right to be impleaded, as otherwise, it would amount to unnecessarily enlarging the scope of writ petition and, therefore, on that count also the application may be dismissed.
Learned advocate for the petitioners invited this Court's attention to the affidavit-in-reply and documents annexed by the respondent no.4 and his application for taking action being Civil Application No.4702 of 2012 and averments made in the rejoinder that the entire action is unfortunately warranted on account of the lack of bonafide on the part of the concerned and, therefore, if one looks at the development of events and the manner of exercising power one would easily come to the conclusion that the entire exercise is not bonafide. In fact, the averments, which have been made on oath in the form of rejoinder speaks volumes about the malafide action and, therefore, on this count also the petition is required to be allowed.
Learned advocate for the petitioners also submitted that the petitioners have not sought any adjudication and/or declaration qua Wakf's property or Wakf, matters except challenging the legality and validity of the notice and the order impugned dated 23.08.2011 and the action taken pursuant thereof, the application, therefore, is required to be rejected and the applicants therein may not be impleaded as party respondent in the present proceedings.
Learned advocate for the petitioners has further contended that looking to the provision namely; Sections 67, 83 and 84 and the rules framed by the State of Gujarat known as the Gujarat State Wakf Tribunal procedure Rules 1998, it can be said that elaborate procedure is prescribed which would also go against the contention on behalf of the respondent no.4 that the efficacious remedy is available qua the questions raised in this petition and hence on this ground also the petition is required to be entertained and allowed.
Learned advocate for the petitioners has further submitted that on account of pendency of change report the petitioner no.1's resignation is of no consequence till the change report is decided and accepted. Therefore, petitioner no.1 continues as sole trustee and therefore, her removal was required to be effected only after following due procedure of law and in compliance of principles of natural justice. The petitioner no.2 was Mujavar and therefore, his rights as Mujavar cannot be taken away or affected as provided in Section 64(2) of the Wakf Act..
Learned advocate for respondent no.4 contended that the present petition is not maintainable, as the Apex Court has observed in case of Board of Wakf, West Bengal Vs. Anis Fatma Begum (supra) that the matter arising out of the provision of Wakf Act and pertaining to Wakf are to be strictly governed by the provision of Wakf Act, wherein Tribunal is created and the Tribunal has power to give appropriate relief in appropriate cases.
Learned advocate for respondent no.4 laid heavily emphasis upon the observations of the Apex Court in case of Board of Wakf, West Bengal Vs. Anis Fatma Begum (supra) and invited this Court's attention to the observations made in paragraph nos.15, 16 and 17 and submitted that in light of the unequivocal observation of the Apex Court, this Court may not entertain this petition, as the petitioners are required to be non suited, so far as the present petition is concerned only on ground of observation of the Apex Court, which clearly indicate that the High Courts under Article 226 should not entertain petition arising of provision of Wakf Act and parties are to be relegated to Tribunal only.
Learned advocate for respondent no.4 thereafter relying upon the decision of the Apex Court in case of Ramesh Gobindram (Dead) Through LRS. Vs. Sugra Humayun Mirza Wakf reported in (2010) 8 Supreme Court Cases 726, contended that the petition is in fact required to be dismissed in light of the observations made by the Apex Court in the aforesaid judgment also, which supports the contention of the respondent no.4 that this Court under Article 226 of the Constitution of India may not entertain the petition in light of the observation of the Apex Court and in light of the facts that there exists statutory alternative appropriate and efficacious remedy in the form of Appeal to the Tribunal.
Learned advocate for the respondent no.4 further contended that without prejudice to the aforesaid submission with regard to non maintainability of the present petition, in view of the observation made by the Apex Court in case of Board of Wakf, West Bengal Vs. Anis Fatma Begum (supra) even on the ground of availability of alternative remedy, the present petition is required to be dismissed.
Learned advocate for respondent no.4 elaborately contended that the remedy of approaching Tribunal cannot be said to be non efficacious, as sought to be made out by the learned advocate for the petitioners. The remedy is said to be efficacious, as could be seen from various observations of the Apex Court in case of Board of Wakf, West Bengal Vs. Anis Fatma Begum (supra) as well as Ramesh Gobindram (Dead) Through LRS. Vs. Sugra Humayun Mirza Wakf (supra) , the High Court, therefore, need not go into the question as to whether the remedy of Tribunal could be said to be efficacious or not, as there exists Apex Court's observation qua non maintainability of the petition straight to the High Court under Article 226 of the Constitution of India, when action arising out of Wakf Act is subject matter of challenge.
Learned advocate for respondent no.4 further contended that the non availability of jurisdiction to pass interim orders qua orders made under Section 67(2) cannot be said to be so glaring incapacity as to render the capacity of Tribunal inefficacious. In fact, legislature has in its wisdom provided for no interim orders, so far as the order under Section 67 is passed. Therefore, in that view of the matter it cannot be said that remedy of approaching Tribunal is not efficacious so as to maintain the petition under Article 226 of the Constitution of India.
Learned advocate for the respondent no.4 thereafter contended that the petition is not required to be maintained on account of disputed question of facts involved in the petition. The disputed question of facts are sought to be raised, which would better be sorted out and adjudicated by the Tribunal rather than in this petition under Article 226 of the Constitution of India.
Learned advocate for respondent no.4 further contended that the disputed question of facts qua Wakf property and maintenance of Wakf, the documents produced on record indicating that at least for some time in past, the property could not have been claimed exclusively by the present Trust. These are the questions, which cannot be gone into without appropriate exercise of leading evidences and this Court under Article 226 of the Constitution of India would certainly not undertake that exercise and, therefore, the petition is required to be dismissed.
Learned advocate for respondent no.4 relying upon the decision in case of Transport And Dock Workers Union And Others Vs. Mumbai Port Trust And Another, reported in (2011) 2 SCC 575, contended that the High Court may not examine the complex and complicated technical issues and it is, therefore, required to be left to the expert body constituted under the provision of the statute concerned.
Learned advocate for the respondent no.4 relying upon the aforesaid judgment contended that the provision of Wakf Act and the maintenance of Wakf, the duties of Mutawally and Mujavar are required to examine in view of the complexity and it is better to be left to the competent authority i.e. Tribunal, which is especially created for this purpose and, therefore, the petition cannot be entertained and it may be dismissed.
Learned advocate for the respondent no.4 thereafter relying upon the decision in case of Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement And Another, reported in (2010) 4 Supreme Court Cases 772, special emphasis upon paragraph nos. 35, 37, and 38 and contended that when a statutory forum is created for redressal of grievances, writ petition should not be entertained ignoring the statutory scheme. In the instant case, the decision of Tribunal is subject matter of judicial review and scrutiny by this Court and thus the petitioner should be relegated to the Tribunal and in case, if the Tribunal's order is against them or against any party, that party may have recourse of approaching this Court. The right to approach this Court on the decision of Tribunal, thus, cannot be jeopardized by entertaining the petition straight way without relegated to the petitioners to the Tribunal and without there being any order of the Tribunal in view of the various decision cited hereinabove.
Learned advocate for the respondent no.4 thereafter relied upon the decision of Apex Court in case of State of Madhya Pradesh Vs. Nerbudda Valley Refrigerated Products Company Private Ltd. And Others, reported in (2010)7 SCC 751, contended that when alternative remedy is available, it is appropriate for the High Court to relegate the party to the remedy and writ petition is not maintainable.
Learned advocate for respondent no.4 further relied upon the decision in case of New Okhla Industrial Development Authority Vs. Kendriya Karamchari Sahkari Grih Nirman Samiti, reported in (2006) 9 SCC 524, contended that when disputed question of facts are involved, the Court should not entertain the petition and undertake the task of adjudicating thereon. Learned advocate for the respondent no.4 further contended that the writ petition cannot be entertained on account of so called lack of jurisdiction to pass the impugned order, as the lack of jurisdiction and the erroneous exercise of jurisdiction have difference, which cannot be overlooked by anyone. In the instant case, it cannot be said that the respondent no.4 did not have any jurisdiction to pass order impugned. At the best, it can be said that respondent no.4 has erroneously exercised jurisdiction, if the contentions of petitioner are accepted, therefore, lack of jurisdiction cannot be permitted to take place of erroneous exercise of jurisdiction so as to render the petition maintainable. The learned counsel for respondent no.4 in support of his submission relied upon decision of the Apex Court in case of J. Kodanda Rami Reddy Vs. State of Andhra Pradesh And Others reported in (2011) 1 SCC 197.
Learned advocate for respondent no.4 invited this Court's attention that the petitioners have in fact no right to maintain this petition, as the petitioner no.1 has resigned way back on 2001 and, therefore, on plain reading of Section 42(1), it is to be reported to the concerned authority and, therefore, the petitioners have taken convenient stand to bring about the petition and challenge within legal rubrics. At times petitioner no.1 has acted as a trustee despite the fact that she has resigned and at times the respondent no.2 has acted as a trustee and/or person managing the Trust property. There exists no word or designation called "care-taker Mujavar". The petitioner no.2 has styled himself as "care taker Mujavar" in this petition, in fact as per the stand of the Wakf Board-respondent no.4, the petitioner no.2 or the person who was acting as Mutawalli and notice to him was absolutely justified and pursuant thereto the action taken cannot be said to be illegal for want of compliance with the principle of natural justice. The action issuing notice is absolutely just and proper and the subsequent action and order impugned would also be justified on the ground that the mandatory provision of Section 46 have not been complied with and some of the Wakf's properties were not even properly accounted for and when such serious allegations are made, this Court under Article 226 of the Constitution of India may not interfere with the said.
This Court has heard learned advocate appearing for the parties extensively over the rival contentions, as the hearing had gone on for quite some time, it was ascertained from the learned counsels for the parties as to whether they were agreeing to threat the hearing as final hearing so as to save forensic time and avoid repetition of arguments at second stage Shri Hakim, learned advocate for the petitioners agreed but however learned advocate for respondent no.4 was unable to express his willingness for treating this as final hearing and therefore, he submitted that he is confining his submission qua the question of admission and granting of any interim relief only. Accordingly, bearing the aforesaid in mind now this Court proceeds with examining the various contentions raised by them. The Court is of the considered view that as the arguments and contentions have extensively canvassed, it would be appropriate to deal with them elaborately though the order is being passed qua admission and grant of interim relief only.
The following indisputable aspects emerging from the rival submissions and record deserve to be set out as under:
(i) The Trust in question i.e. Wakf in question is having certificate of registration since 22.01.1953 as a trust under the then existing law.
(ii) Since 22.01.1953 till the impugned order came to be passed there was continuous management in the hands of the petitioner nos.1 and 2 and or their predecessors and forefathers and change report was pending which was preferred in the year 2002.
(iii) The documents adduced by both the parties in form of revenue entries qua trust properties dating in the year 1926 to 1935 may not be looked into at this stage as they were not in fact subject matter on which Wakf Board invited petitioners' submissions nor could be the notice said to be based there upon as could be seen from the plain reading of the notice dated 26.07.2011.
(iv)The petitioner no.1 on account of her age and health resigned as trustee in the year 2000 and her sons were proposed as Trustees, and the change report accordingly was preferred, whereon, as it is stated hereinabove two to three communications are received in respect of making up the deficiencies in application.
(v) For the first time in the year 2011, the petitioner no.2 received notice dated 26.07.2011 which on a major portion contain request for complying with deficiency for considering the change report and on a later half contains notice under Rule 14 of the Gujarat Wakf Rules.
(vi) Admittedly, there was no reply or response to this notice.
(vii) The order dated 23.08.2011 came to be passed invoking provision of Section 67 of the Wakf Act, in which admittedly there was no notice to any party nor was any hearing thereon.
(viii) The order is passed by the Wakf Board and is communicated under the signature of Chief Executive Officer as well as Chairman of the Wakf Board.
(ix) The Wakf Board initially appointed Collector, Patan as an administrator of the property and Wakf, as could be seen from the order itself. Subsequently he was changed and Mamlatdar, Patan Taluka appointed Mujavar who has been joined as respondent no.5.
(x) The said Mujavar resigned and one more came to be appointed who also resigned and the respondent no.6 is appointed by the Wakf Board itself to perform Mujavari.
(xi) The applicants of Civil Application No.9587 of 2011 have indicated in their application that they have filed suit being Regular Civil Suit No.156 of 2011 and in that suit no interim orders or any order whatsoever have been passed.
(xii) Learned advocate Shri Pandya for those applicants made the following statement:
"The applicants are interested in joining themselves as a party only to assists the Court, in case, if the Court is undertaking exercise of examining the right and property in question otherwise present applicants are no where concerned with the three orders which have been challenged in the petition, as the applicants have already preferred Civil Suits and therefore, it is only to that extent that they are likely to be aggrieved, in case if, any observations are made qua title of the property or lack thereof otherwise it is question between the petitioners and Wakf Board."
Shri Pandya on inquiring also informed that they have not approached the Tribunal.
(xiii) The applicants have not approached Tribunal with any application whatsoever or any prayer whatsoever. Those applicants of this application have, as per the submission of Shri Pandya, approached the Wakf Board on July 2011 for challenging the certificate of Trust, which is inuring since 1953.
(xiv) The application of those applicants have not been acted upon by Wakf Board, as there appears to be no notice to the other parties, as could be seen from the averments and even statement of learned counsel for the petitioners that petitioners have not received any notice qua the application that is said to have been preferred by the applicants of that application.
Against the factual backdrop of aforesaid facts, the Court is of the view that let there be a reproduction of the relevant provisions, which would govern the conduct of the parties involved. The provision of Section 3(i), Section 42, Section 46, Section 47, Section 64, Section 67 need to be set out as under:
3.
Definitions.
In this Act, unless the context otherwise requires-
(i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a Wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any Custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property:
Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation;
42.
Change in the management of wakfs to be notified. (1) In the case of any change in the management of a registered wakf due to the death or retirement or removal of the mutawalli, the incoming mutawalli shall forthwith and any other person may notify the change to the Board.
(2)In the case of any other change in any of the particulars mentioned in section 36, the mutawalli shall, within three months from the occurrence of the change, notify such change to the Board.
46. Submission of accounts of wakfs.
(1) Every mutawalli shall keep regular accounts.
(2)Before the 1st day of May next, following the date on which the application referred to in section 36 has been made and thereafter before the 1st day of May in every year, every mutawalli of a wakf shall prepare and furnish to the Board a full and true statement of accounts, in such form and containing such particulars as may be provided by regulations by the Board, of all moneys received or expended by the mutawalli on behalf of the wakf during the period of twelve months ending on the 31 st day of March, or, as the case may be, during that portion of the said period during which the provisions of this Act, have been applicable to the wakf:
Provided that the date on which the annual accounts are to be closed may be varied at the discretion of the Board
47. Audit of accounts of wakfs.
(1) The accounts of wakfs submitted to the Board under section 46 shall be audited and examined in the following manner, namely:-
(a) in the case of a wakf having no income or a net annual income not exceeding ten thousand rupees, the submission of a statement of accounts shall be a sufficient compliance with the provisions of section 46 and the accounts of two per cent of such wakfs shall be audited annually by an auditor appointed by the Board;
(b) the accounts of the wakf having net annual income exceeding ten thousand rupees shall be audited annually, or at such other intervals as may be prescribed, by an auditor appointed by the Board from out of the panel of auditors prepared by the State Government and while drawing up such panel of auditors, the State Government shall specify the scale of remuneration of auditors;
(c) the State Government may at any time cause the account of any wakf audited by the State Examiner of Local Funds or by any other officer designated for that purpose by that State Government;(2)
The auditor shall submit his report to the Board and the report of the auditor shall among otherthings, specify all cases of irregular. illegal or improper expenditure or of failure to recover money or other property caused by neglect or misconduct and any other matter which the auditor considers it necessary to report; and the report shall also contain the name of any person who, in the opinion of the auditor is responsible for such expenditure or failure and the auditor shall in every such case certify the amount of such ex- penditure or loss as due from such person.
(3)The cost of the audit of the accounts of a wakf shall be met from the funds of that wakf:
Provided that the remuneration of the auditors appointed from out of the panel drawn by the State Government, in relation to wakfs having a net annual income of more than ten thousand rupees but less than fifteen thousand rupees shall be paid in accordance with the scale of remuneration specified by the State Government under clause (c) of sub-section (1):
Provided further that where the audit of the accounts of any wakf is made by the State Examiner of Local Funds or any other officer designated by the State Government in this behalf the cost of such audit shall not exceed One and a half per cent of the net annual income of such wakf and such costs shall be met from the funds of the wakfs concerned.
64.
Removal of Mutawalli.
(1) Notwithstanding anything contained in any other law or the deed of wakf, the Board may remove a mutawalli from his office if such mutawalli-
(a) has been convicted more than once of an offence punishable under section 61; or
(b) has been convicted of any offence of criminal breach of trust, or any other offence involving moral turpitude, and such conviction has not been reversed and he has not been granted full pardon with respect to such offence; or
(c) is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of a mutawalli; or
(d) is an undischarged insolvent; or
(e) is proved to be addicted to drinking liquor or other spirituous preparations, or is addicted to the taking of any narcotic drugs; or
(f) is employed as a paid legal practitioner on behalf of, or against, the wakf; or
(g) has failed, without reasonable excuse, to maintain regular amounts for two consecutive years or has failed to submit, in two consecutive years, the yearly statement of accounts, as required by sub-section (2) of section 46; or
(h) is interested, directly or indirectly, in a subsisting lease in respect of any wakf property, or in any contract made with, or any work being done for, the wakf or is in arrears in respect of any sum due by him to such wakf; or
(i) continuously neglects his duties or commits any misfeasance, malfeasance, misapplication of funds or breach of trust in relation to the wakf or in respect of any money or other wakf property; or
(j) wilfully and persistently disobeys the lawful orders made by the Central Government, State Government, Board under any provision of this Act or rule or order made thereunder;
(k) misappropriates or fraudulently deals with the property of the wakf.
(2)The removal of a person from the office of the mutawalli shall not affect his personal rights, if any, in respect of the wakf property either as a beneficiary or in any other capacity or his right, if any, as a sajjadanashin.
(3)No action shall be taken by the Board under sub-section (1), unless it has held an inquiry into the matter in a prescribed manner and the decision has been taken by a majority of not less than, two- thirds of the members of the Board.
(4)A mutawalli who is aggrieved by an order passed under any of the clauses (c) to (i) of sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final.
(5)Where any inquiry under sub-section (3) is proposed, or commenced, against any mutawalli, the Board may, if it is of opinion that it is necessary so to do in the interest of the wakf, by an order suspend such mutawalli until the conclusion of the inquiry: Provided that no suspension for a period exceeding ten days shall be made except after giving the mutawalli a reasonable opportunity of being heard against the proposed action.
6) Where any appeal is filed by the mutawalli to the Tribunal under sub-section (4), the Board may make an application to the, Tribunal for the appointment of a receiver to manage the wakf pending the decision of the appeal, and where such an application is made, the Tribunal shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, (5 of 1908.) appoint a suitable person as receiver to manage the wakf and direct the receiver so appointed to ensure that the customary or religious rights of the mutawalli and of the wakf are safeguarded.
(7)Where a mutawalli has been removed from his office under sub-section (1), the Board may, by order, direct the mutawalli to deliver possession of the wakf property to the Board or any officer duly authorised in this behalf or to any person or committee appointed to act as the mutawalli of the wakf property.
(8)A mutawalli of a wakf removed from his office under this section shall not be eligible for re-appointment as a mutawalli of that wakf for a period of five years from the date of such removal."
14. Procedure regarding removal of Mutavalli under Sec. 64-(1) The Chief Executive Officer shall issue notice of hearing in Form XI to the Mutavalli concerned against whom action is contemplated under Sec.64.
(2)After having served with the notice, an inquiry shall be held by the Chief Executive Officer or other Officer of the Board authorised in that behalf as the case may be who shall thereafter submit his report to the Board.
(3)Record of such inquiry in every such case shall include,-
(1)Notices for explanation of Mutavallies and their replies to such notices;
(2)Oral and other documentary evidence produced/received during the inquiry;
(3)Brief record of reasons and the report of enquiry;
(4)Formal orders of removal of a Mutavalli on the basis of report of the Chief Executive Officer's decision shall be issued after the approval of the Board by not less than 2/3 of the members of the Board.
67. Supervision and supersession of committee of management. (1) Whenever the supervision or management of a wakf is vested in any committee appointed by the wakf, then, notwithstanding anything contained in this Act, such committee shall continue to function until it is superseded by the Board or until the expiry of its term as may be specified by the wakf, whichever is earlier:
Provided that such committee shall function under the direction, control and supervision of the Board and abide by such directions as the Board may issue from time to time:
Provided further that if the Board is satisfied that any scheme for the management of a wakf by a committee is inconsistent with any provision of this Act or of any rule made thereunder or with the directions of the wakf, 33 it may, at any time, modify the scheme in such manner as may be necessary to bring it in conformity with the directions of the wakf or of the provisions of this Act and the rules made thereunder.(2)
Notwithstanding anything contained in this Act and in the deed of the wakf, the Board may, if it is satisfied, for reasons to be recorded in writing, that a committee, referred to in sub-section (1) is not functioning properly and satisfactorily, or that the wakf is being mismanaged and that in the interest of its proper management, it is necessary so to do, by an order, supersede such committee, and, on such supersession, any direction of the wakf, in so far as it relates to the constitution of the committee, shall cease to have any force:
Provided that the Board shall, before making any order superseding any committee, issue a notice setting forth therein the reasons for the proposed action and calling upon the Committee to show cause within such time, not being less than one month, as may be specified in the notice, as to why such action shall not be taken.(3)
Every order made by the Board under sub-section (2) shall be published in the prescribed manner and on such publication shall be binding on the mutawalli and all persons having any interest in the wakf.(4)
Any order made by the Board under sub-section (2) shall be final:
Provided that any person aggrieved by the order made under sub- section (2) may, within sixty days from the date of the order, appeal to the Tribunal:
Provided further that the Tribunal shall have no power to suspend the operation of the order made by the Board pending such appeal.(5)
The Board shall, whenever it supersedes any committee under sub-section (2), constitute a new committee of management simultaneously with the order made by it under sub-section (2).(6)
Notwithstanding anything contained in the foregoing sub- sections, the' Board may, instead of superseding any committee under sub-section (2), remove any member thereof if it is satisfied that such member has abused his position as such member or had knowingly acted in a manner prejudicial to the interests of the wakf, and every such order for the removal of any member shall be served upon him by registered Post:
Provided that no order for the removal of the member shall be made unless he has been given a reasonable opportunity of showing cause against the proposed action:
Provided further that any member aggrieved by any order for his removal from the membership of the committee may, within a period of thirty days from the date of service of the order on him. prefer an appeal against such order to 34 the Tribunal and the Tribunal may, after giving a reasonable opportunity to the appellant and the Board of being heard, confirm, modify or reverse the order made by the Board and the order made by the Tribunal in such appeal shall be final."
16.
Manner of Publication of of the Order of the Board made under sub-sec. (3) of Sec. 67.- The order of supersession of the committee of management of any wakf in the State shall be published, in the leading two or three daily news papers having wide publicity in the State of Gujarat, and in Official Gazette of the Government of Gujarat.
Thus, plain and simple reading of the aforesaid provisions would go to show that elaborate provision is made for treating and dealing with Mutawalli, Wakf property, Trustees etc. It is required to be noted, at this stage, that the stand of the learned counsel of the Wakf Board was that on plain reading of Section 41 and 42(1), there exists no requirement of approval from the Wakf Board qua the "Change Report" as the language indicates that the change is only to be notified to the Board and therefore, the Board was justified in treating petitioner no.2 to be Mutawalli and the notice i.e. 26.07.2011 as well as the impugned order thereafter were also just and proper.
This Court is of the prima facie view that the learned counsel for the respondent no.4 is incorrect in taking a stand, as the said stand is not borne out from the communication issued time and again by the Board to petitioner no.2. Had the stand of respondent no.4 being as canvassed by their advocate, then there would not have been any justification for calling upon the petitioner no.2 for making up the deficiencies mentioned in those communications. Thus, the action of the respondent no.4 do not indicate any consistency and therefore, prima facie it appears that the stand taken by respondent no.4 is incorrect.
The change report was not rejected and during pendency thereof respondent no.4-Wakf Board deemed it fit to issue notice, which in my prima facie view was not strictly in accordance with the provision of Section 64 and was certainly not as contemplated under Section 67 of the Wakf Act. The plain reading of Section 64 and the reasons mentioned in the notice are sufficient to indicate that the said notice cannot stand scrutiny of the requirement which are embedded in Section 64 of the Wakf Act for issuing notice.
The notice contains Rule 14 also. Section 64 and Rule 14 indicate as to on what count and in which eventuality the provision of Section 64 of the Wakf Act are pressed into service and in what manner. There is no manner of doubt that Section 67 and Rule 16 provides for procedure qua supersession and removal of managing committee or it's member appointed by Wakf. and substituting other committee or persons in place thereof. In the instant case, admittedly there is no notice at all either under Section 67 or Rule 16 of the Act and Rules. The notice dated 26.07.2011 is confined qua provision of Section 64 and Rule 14 only, whereas the resultant order is an order clearly exercising power under Section 67 and Rule 16, in my view is not justified at all, as there is a blatant breach of principles of natural justice.
The Court is of the prima facie view that Section 67 and Rule 16 could not have been invoked without there being eventualities justifying or permitting invocation thereof. Section 67 in unequivocal terms provides that the committee referred to in sub-Section 1 of Section 67 is not functioning properly and satisfactorily, or that the Wakf is being mismanaged and that in the interest of its proper management, it is necessary so to do, by an order, supersede such committee, and, on such supersession, any direction of the wakf, in so far as it relates to the constitution of the committee, shall cease to have any force. However, it is required to be noted that for superseding any committee this existence of those eventualities are absolutely important and material. In other wards, it may be said that the Board gets jurisdiction to invoke Section 67 only in the eventuality mentioned in Section 67(2). Therefore, in my prima facie view, it was bounden duty cast upon the Board first to record its own satisfaction with regard to the existence of eventuality mentioned thereunder and after due application of mind by the Wakf Board and not by the individual member or officer. There has to be a recording of reason with regard to the existence of mismanagement and/or the eventuality mentioned under Section 67(2). The jurisdiction will emerge in favour of the Board to exercise power of superseding. In other words, in absence of those eventualities or in absence of recording of those satisfaction by the Board, one can safely conclude that there exists no jurisdiction in Wakf Board to invoke Section 67(2) for superseding.
Assuming for the sake of examining without holding that there existed eventuality which warranted invocation of Section 67(2), then also elaborate provision is mentioned thereunder to be followed before passing any order. Plain reading of Section 67 with Rule 16 would indicate clearly that without following the procedure, the Wakf Board could not have superseded the management, committee or the person those who are managing the Wakf. Admittedly, in the instant case, no notice under Section 67(2) or Rule 16 has been issued ever to anyone. No reasons have been indicated as to why and in what manner the mismanagement or misappropriation is indicated.
Assuming for the sake of examining without holding that there existed serious doubts qua siphoning of property and/or non registering of property, it was bounden duty of the Wakf Board to put all these doubts by way of notice to the person concerned and give opportunity to meet with them. The documents coming forward on record for the first time by way of affidavit by the Chairman of the Wakf Board could have been supplied to the petitioners before invoking Section 67 or provision thereof. Though it is a different matter that veracity of those documents has been challenged by filing affidavit on oath and an application is filed by the petitioners urging this Court to take proper action against the Chairman for producing so called fabricated documents. At this stage, it must also be mentioned that the Wakf Board has also produced some documents, thereafter indicating that the earlier documents produced by them were not fabricated or incorrect.
Be that as it may, the Court at this stage, is of the view that no elaborate inquiry, at this stage, is called for as the learned advocate for the Wakf Boars confined his submission qua admission and granting interim relief only.
The entire action of the Wakf Board is required to be tested and scrutinized from the point of view of provision of Section 67. Section 67, does not permit the Wakf Board to appoint either Collector or Mamlatdar to be an administrator of the Wakf Board, as the Wakf Act and the Scheme would not permit Collector or Mamlatdar to be an administrator of wakf property by Wakf Board. The provision of Section 67 (5) is unequivocally inuring and therefore, the order impugned is contrary to the provision of Section 67, as under that provision one cannot say Collector and Mamlatdar are the competent person to be appointed as administrator. In other words, there exists no power of appointment of Collector or Mamlatdar as administrator by Wakf Board.
When the Collector or Mamlatdar has been appointed and he has been taken charge by way of applying locks on the property and coupled with the fact that there exists embargo upon Tribunal's power to issue any interim orders then a question arises whether existence of Tribunal can be said to be an efficacious remedy so as to non suit the petitioners. The answer is emphatic "No". The petitioners' petition under Article 226 is required to be viewed from that angle also. This persuade the Court to hold that there exists no efficacious remedy which could assuage the grievances of the petitioners in any manner, as the Tribunal is rather statutorily restrained from granting any interim relief when action is taken under the provisions of Section 67 and Rule 16. Admittedly the impugned order is passed invoking provisions of Section 64 as well as Section 67 of the Wakf Act and hence it can well be said that Tribunal did not have any powers to grant any interim relief to the petitioners qua their supersession as managing persons, though admittedly no notices as envisaged under section 67 or rule 16 had been issued and no inquiry or procedure is followed by the Board before passing the order under Section 67 of the Wakf Act and therefore, it cannot be said that there exists any alternative efficacious remedy.
The decision relied upon by the learned advocate for respondent no.4 qua non maintainability of the petition arising from the matter of Wakf, in my view will have no applicability to the present case, as the decision cited at the bar on behalf of the petitioners' counsel would go to show that in a given case when there is a jurisdictional issue or lack of authority, then the writ petitioner cannot be non suited on a ground of alternative remedy. In fact, it is by now crystallized law position that Article 226 remedy is always available and the same is not in any manner curtailed and/or watered down by even Court's orders and judgments. The self imposed restrictions cannot be cited or relied upon for denying the remedy which Constitution has provided to citizens for enforcing their rights. In the instant case, if one looks at the development of the facts and the existence of this Trust or Wakf since 1953 on the books of Board and the functioning of Wakf or Trust in their own capacity without any hindrance and abrupt supersession of the committee and/or the manager would amount to taking away the vested right and, therefore, without due authority of law the same cannot be jeopardized or affected in any manner. The decision cited at the bar reported in 2010 (12) SCALE 323 (SUPRA) cannot be said to be providing blanket proposition of law against entertaining writ petition and, therefore, in case of exceptional circumstances and on basis of the established principle of exercising jurisdiction under Article 226 namely; breach of principle of natural justice, lack of jurisdiction, when the action is questioned, then even if the alternative remedy is available, discretion of High Court under Article 226 is not ousted and it can never be ousted. At this stage, as could be seen from the decision cited by learned advocate for the petitioners referred hereinabove, one can safely conclude that the decision in case of reported in 2010(12) Scale 323 (supra) cannot be considered to be completely ousting jurisdiction of this Court, more over it may also be noted that the said decision has no discussion of provisions of section 67 and it's embargo upon Tribunal's powers in granting interim relief it cannot be said to be a governing precedent so far as the present case and it's facts are concerned wherein the Wakf Board has not followed any procedure under Section 67 or Rule 16 and straight way superseded the managing committee of the Wakf.
The fact remains to be noted that the Wakf or the Trust has its registration and existence acknowledged by way of valid Certificate of Registration since 1953 and till the impugned order came to be passed there was absolutely no questioning qua the Wakf being managed and handled and taken care by the petitioner nos. 1 and 2. Therefore, as it is stated hereinabove, when the provision of Section 67(2) is sought to be invoked, the existence of eventuality mentioned thereunder are sine qua non. In other words, in case, if those eventualities envisaged in Section 67(2) are absent, then there exists no jurisdiction in the Wakf Board to supersede or remove the committee or the managing persons. In the instant case, as it is stated hereinabove there is no manner of doubt that since 1953 onwards that Trust or Wakf is registered and after 1995 it is governed by Wakf Act and the change report is pending decision since 2002, in such a situation it was not open to the Wakf Board to initiate action under Section 67(2) without recording its reason with regard to the existence of such circumstances. The non filing of income returns and auditing and/or uncleanness in the property are not so significant a ground as to invoke drastic power of Section 67(2) and that too without following procedure of law. Therefore, there may not be any other conclusion but that Wakf Board lacked in jurisdictional facts for invoking provisions of section 67 or rules 16. In other words there existed no jurisdictional facts, which would have given rise to situation where the power under Section 67(2) could be exercised, thus, it become an act of exercise of power without jurisdiction.
This is required to be noticed from the angle of mandatory provision of Section 67(2) which unfortunately has not been brought to the notice of the Apex Court in case 2010 (12) SCALE 323 (SUPRA) that when order is passed under section 67 the Tribunal has no power to grant any interim relief and/or injunction. Therefore, the petitioners may not have any other remedy which could be termed to be efficacious remedy, than filing the writ petition under Article 226 of the Constitution of India.
The averments made in the memo of the petition and in the rejoinder and reply, deserve to be set out as under in order to indicate the allegations and counter allegations made by the parties. The Court is not to opine on these allegations at this stage, but those allegations are sufficient to warrant detailed scrutiny and examination, or else it will send wrong signal to the society and therefore, the seriousness of the allegations cannot be brushed aside. The Court hasten to add here that these allegations are not in any manner opined upon by the Court at this stage, but they are required to be reproduced and hence these paragraphs are reproduced as follows:- Page-137, paras-6 &7, Page- 144 Para-3.4, Page-160 paras 5 and 6).
(6). I say and submit that the contention of the petitioner that the statutory provisions of the Wakf Act 1995 (hereinafter referred to as "the Wakf Act") have not been followed and the entire proceedings have been conducted in slip shod manner. And that without any legal justification and in malafidely, deliberately and hurriedly manner to steal march over the petitioners by respondent No.5 is appointed as mujawar, by the respondent No.4-Wakf Board is evident from the record i.e. both the petition and the Affidavit in Reply. Therefore the petition is required to be allowed as gross violation of fundamental rights and non-compliance of statutory provisions of the Wakf Act is established on record.
(7) I further say and submit that the mujawar - the respondent No.5, appointed by the respondent No.4 - Wakf Board is an ex-police man and the Chairman of the Wakf Board is also a retired police man. Therefore, from the same, it becomes evident that the Chairman of the respondent No.4- Wakf Board has been taking uncalled for and unwarranted interest in the proceedings and to short circuit the petition and to frustrate the proceedings, pending before this Honourable Court, the respondent No.4-Wakf Board has appointed their man as the mujawar. (Respondent No.5).
3.4 Meanwhile, the assessment of the Board came to be true and a letter alongwith affidavit came to be received by the Board on 25.06.2004. The letter was addressed by the office of collector Patan that Land Bearing Survey No.935 belong to Government. It is further observed in Para 3 that the trust has been wrongly registered on the basis of false information and misrepresentation. The deponent craves leave to refer to and rely upon the contents of the letter for its true meaning, effect and interpretation. Hereto annexed and marked as "Annexure-R 24" is the copy of said letter dated 22.06.2004. Further hereto annexed and marked as "Annexure-R 25(Colly.)" is the copies of revenue records referred in the letter dated 25.06.2004."
5. With respect to para No.2 I specifically and categorically denied that I, petitioner No.2 was afforded all opportunities as alleged, I further most humbly state and submit that the additional affidavit is not filed bonafidely to bring additional facts, but malafidely to raise irrelevant, immaterial and frivolous issues, which have no connection with the orders impugned in the petition.
6. With respect to para No.3, para No.3.1, "Annexure-R 17" dated 01/03/1960, para No.3.4, "Annexure-R 24" dated 26/02/2004, "Annexure-R 25 (Colly)", para No.3.5 "Annexure-R 26" dated 22/07/2003 and para No.4, I most humbly state and submit that the controversies raised regarding the title of Wakf Property etc. are not related to or arise in the petition, as the petition is restricted to the challenged to the impugned illegal orders passed by the Wakf Board. I further most humbly state and submit that the grossly illegal and malafide actions of the respondents are laid bare in view of the fabricated documents annexed as "Annexure-R 25 (Colly)". Therefore even on the said ground the petition is required to be allowed and the impugned orders and the actions in furtherance thereto are required to quash and set aside, not only on the ground of violation of the principles of natural justice, but also being grossly malafide and illegal.
The Court need not go into these allegations at this stage, suffice it to say that they need closed scrutiny at appropriate stage.
In view of the aforesaid discussion, when the Court has prima facie come to the conclusion that the impugned orders suffer from following infirmities. They are set out as under.
(i) The Wakf Board has not taken into consideration the fact that there existed no eventuality, which would have prompted the Wakf Board to issue even notice under Section 67(2) or Rule 16 in for removing the petitioners of their right to manage the wakf.
(ii) It was not open to the Wakf Board to take any action under Section 67(2) without following the procedure of law.
(iii) In the instant case, Wakf Board has not issued any notice indicating that it proposes to take action under Section 67(2), as no notice issued under Section 67(2) or Rule 16.
(iv) The mandatory provision for simultaneously appointing committee, as envisaged under Section 67(5) is unfortunately not taken care of as the Collector was appointed and he was replaced by Mamlatdar. This is not permissible in view of the unequivocal mandate of the statute. This can never be permitted at the end of Wakf Board, who is to be governed by the statutory provision in its letter and spirit.
(v) The appointment of Collector and Mamlatdar was not authorized in any manner and, therefore the said appointment was per se illegal. The Court is mindful of the fact that the learned advocate for the respondent no.4 has not agreed for final disposal but the arguments were advanced at length and there cannot be any manner of doubt that so far as Wakf Board is concerned, there existed no provision for appointment of administrator and therefore, the Wakf Board has no other alternative, but to appoint simultaneous committee of for managing the affair of the wakf in place of committee superseded. In the instant case, it is unfortunate that this provision namely; Section 67(5) is completely ignored and the Wakf Board has acted, as if the Mamlatdar and/or Collector can replaced the committee. This in my view, is diametrically opposite and untenable looking to the statutory mandate, as embedded in the Wakf Act.
(vi) At this stage learned advocate Shri Hakim submitted that in fact Mamlatdar was instructed to appoint the respondent no.5, as Mujavar for performing Mujavary only, that is in my view, be looked into from the angle of provision of Section 64(5), which in term provides that the person having right to perform activities as Mujavar will continue to perform and in the instant case admittedly there was no attempt to ascertain with regard to the right.
(vii) There ought to have been a clear finding on this aspect also before proceeding with robbing of the present Mujavar of his right to perform Mujavary.
(viii) The lack of notice and the grounds mentioned in the earlier notice invoking Section 64 provision could not have been pressed into service for superseding the committee or the management or the person who managing the Wakf.
(ix) Thus, on this ground, the Court is prima facie satisfied that there exists case for detailed consideration, hence Rule returnable on 29.06.2012.
(x) Now, this brings the Court to consider the aspect of interim relief. Question arises as to whether in light of the aforesaid backdrop, there may not be any doubt that there exists strong prima facie case for granting interim relief in favour of the petitioners, as the petitioners were incharge of the property and Wakf, which was a Trust since 1953 onwards. When the principle of natural justice have been violated and that the Court has arrived at the prima facie conclusion and the defects in the order is prima facie found to be existing, then question arises as to whether can interim relief be refused or on spacious ground that the interim relief cannot be granted which may amount to allowing the final relief at admission stage. This proposition of law is to be borne in mind along with the facts of the case in which such proposition is canvassed and made applicable. In fact, there cannot be any blanket proposition of law that interim relief can never be granted which may amount to allowing the petition. In a given case the reliefs are to be couched in such fashion so as to prevent the rival contentions of the parties from dwindling down, at the same time prevent parties from taking advantage of their own deeds and actions.
(xi) The Apex Court has held in case of Devraj Vs. State of Maharashtra reported in AIR (2004) SC 1975 that the facts of the case and pleadings would govern the grant of interim relief . In a given case, relief is required to be granted which may amount to granting of final relief, but the patent ignorance of provision of law, if prima facie held to be existing, then Court should not hesitate in granting relief, which may amount to granting final relief. However, at the same time the proper safeguards to be taken to see to it that because of interim relief parties may not be put to any disadvantage on account thereof. Therefore, in the instant case, as the balance of convenience is in favour of the petitioners and in case if the existing Mujavar is permitted to perform Mujavary, then it is a permission to him without following procedure of Section 64(2), therefore, this would not be permitted. At the same time the staying of the order would also be required to be made in the interest of justice with appropriate restrictions to be imposed upon the petitioners so that hereafter and till the final disposal, there may not be any change which may jeopardize the interest of parties, therefore, the impugned order is stayed. The petitioner no.2 may perform Mujavary, records of income received hereafter may be kept and periodically be submitted to the Wakf Board. The Wakf Board shall be at all liberty under the law to inspect at the reasonable time after notice the activities and/or the functioning of Wakf . The property be kept and maintained properly and no alienation of any property and/or income bearing the minimum requirement for maintaining be incurred. The report of income should be made at fortnight to the Wakf Board and Wakf Board, as it is stated hereinabove shall have full power, authority to inspect. The undertaking be filed in this Court with a copy to Wakf Board that no property in any manner would be alienated which are there on the record. As result of this order the Board and Mamlatdar shall restore back the possession of property and books of Wakf if any to the petitioners as if the impugned order had not been passed but the petitioners are restrained from alienating the wakf property in any manner they are not to deal with the wakf property except for managing it and maintaining it.
The Civil Application i.e. 9587 of 2011 for joining party, at this stage, is not entertained, as the limited purpose for which the joining party application is made is clear and as this Court is of the view that it is not likely in any manner to be subject matter of consideration. At this stage, the applicants are not permitted to be joined as party but this refusal or rejection of the application shall not come in their way, in case, if the question with regard to other property and/or adjudication arises.
Civil Application No.4702 of 2012 to be heard along with the main matter at final disposal.
Learned advocate Shri Rajan Patel for Shri Syed, at this stage, requested for staying this order. Ordinarily, this Court would have stayed but looking to the discussion hereinabove and the fact that there exists clear violation of provision of Section 67(5) and lack of any authority and jurisdiction to appoint administrator which is an officer of the State and irrespective of his allegiance, this request cannot be accepted, as it is strongly objected by learned advocate for the petitioners, as he says that the two important religious annual ceremony to be performed in this place on 02.05.2012 and 03.05.2012, therefore, this cannot be accepted.
Direct service is permitted.
(S.R.BRAHMBHATT, J.) Pankaj