Madras High Court
M.Ali Hussain vs The Tamil Nadu Wakf Board on 17 December, 2008
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17-12-2008 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN C.R.P. (NPD) No.3559 of 2008 And M.P.No.1 of 2008 M.Ali Hussain .. Petitioner Vs. 1.The Tamil Nadu Wakf Board rep., by its Secretary 3, Santhome High Road, Chennai-600 004. 2.Janab MES Ansari .. Respondents Revision is preferred under Article 227 of the Constitution against the order of the first respondent dated 28.8.2008 in WEA No.13/2002/U5, Cuddalore. For Petitioners : Mrs.Hema Sampath, Sr. Counsel for Mrs.Meenal For Respondent-1 : Mr.Lakshmi Narayanan ORDER
This Civil Revision Petition arises out of an order by which the Tamil Nadu Wakf Board removed the petitioner from the post of Mutawalli under Section 64 of The Wakf Act, 1995.
2. I have heard Mrs.Hema Sampath, learned Senior Counsel appearing for the petitioner and Mr.V.Lakshmi Narayanan, learned counsel appearing for the first respondent-Wakf Board.
3. At the time when the revision petition came up for admission, I had a doubt about the maintainability of the revision petition, without first exhausting the remedy before the Wakf Tribunal and hence I directed the learned counsel on record for the petitioner to serve notice on the Standing Counsel for the Wakf Board. Thereafter, I heard the counsel on both sides only on the question as to whether the petitioner has an alternative remedy of approaching the Wakf Tribunal, against the order of the Wakf Board impugned in the revision petition. Therefore the present order is confined only to this legal issue and I have not addressed myself to the merits of the controversy.
4. The doubt as to whether the petitioner could approach the Wakf Tribunal against the order impugned in the revision, has arisen on account of the fact that Section 64 (1) empowers the Board to remove a Mutawalli for various reasons enlisted in clauses (a) to (k). Section 64 (4) provides a remedy of appeal against the order of removal passed under Section 64 (1), only if such removal was for reasons contained in clauses (c) to (j) of sub section (1) of Section 64. In other words, the remedy of appeal available under sub section (4) of Section 64 is not available to a person who is removed for reasons contained in clause (a) or clause (b) or clause (k) of sub section (1). In the case on hand, the petitioner was removed on the allegation of misappropriation and fraud, covered by clause (k) of Section 64 (1). Therefore the petitioner cannot avail the remedy of appeal under sub section (4). The learned Senior Counsel for the petitioner and the learned Standing Counsel for the Wakf Board are in agreement on this aspect namely that the petitioner cannot invoke Section 64 (4) to file an appeal to the Tribunal, as he was removed in terms of Section 64 (1)(k).
5. But Section 83 (2) of the Act, provides for a remedy of making an application to the Wakf Tribunal, to any Mutawalli or any person interested in a Wakf or any other person aggrieved by an order made under the Act or the Rules. It is not clear whether a person who is debarred from filing an appeal under Section 64 (4), could indirectly go before the Tribunal by taking recourse to Section 83 (2). This lack of clarity has led to the present discussion.
6. The Wakf Act, 1995, was enacted after a lot of deficiencies in the working of the Wakf Act, 1954 was brought to the fore and the attempt made to set them right by the Amendment Act, 1984 failed on account of strong opposition. The present Act creates four power centres viz., (i) the Chief Executive Officer, (ii) the Wakf Board, (iii) the Wakf Tribunal and (iv) the Government and clearly demarcates the area of operation of these power centres. Some of the powers conferred are administrative in nature and some are quasi judicial or judicial in nature. As a consequence, some of the powers are exerciseable in original and some are appellate or revisional. They can be presented in a tabular form as follows:-
Original powers Exerciseable by Appellate or revisional Exerciseable by Dispute under Sections 6 and 7 whether a particular property specified as a Wakf property in the list of Wakfs is a Wakf property or not? Or whether it is a Shia or Sunni Wakf? The Tribunal by way of a suit instituted by the Board or Mutawalli or any person interested therein. The decision of the Tribunal is final under Sections 6(1) and 7(1).
Removal of chairperson or member of the Board under Section 20 State Government Power to give directions for administration of Wakfs and settle schemes for the management of a Wakf, to appoint and to remove Mutawallis, to recover lost properties, etc., under Section 32 (2) The Board The scheme of management settled by the Board under clause (d) or any direction issued under clause (e) of Section 32 (2) can be challenged by way of a suit in a Tribunal under Section 33 (3). Note:-This is by way of a suit and not by way of appeal or revision.
The Tribunal The power to take over Wakf property for undertaking development works, under Section 32 (5). The Board An order under Section 33 (3) directing a Mutawalli or any Officer or other employee of a Wakf to make payment of any amount misappropriated, misapplied or fraudulently retained or the amount of improper expenditure incurred by him. The Chief Executive Officer.
Appealable under Section 33 (4).
To the Tribunal within 30 days and upon deposit of the entire amount ordered by the CEO (the proviso to Section 33 (4) makes it clear that the Tribunal has no power to grant stay). The Tribunal's order is final under Section 33 (5). To pass conditional order of attachment of any property of a person against whom an order had been passed under Section 33 (5). On the application of the CEO to the Tribunal under Section 35 (3).
To recover properties which have been ceased to be used for religious purpose or instruction or charity, under Section 39 (3). On an application to the Tribunal by the Board under Section 39 (3).
Power under Section 40 (1) to decide whether a particular property is a Wakf property or not or whether a Wakf is a Shia or Sunni Wakf? By the Board under Section 40 (1).
Subject to the decision of the Tribunal under Section 40 (2).
The Tribunal.
Power under Section 48 (1) to examine the auditor's report in relation to a Wakf and to pass orders for the recovery of the amount certified by the auditor under Section 47 (2). The Board.
Questionable under Section 48 (2) by the Mutawalli or any other person aggrieved by the order of the Board, within 30 days. The Tribunal (whose decision is final under Section 48 (4).
Sale of Wakf properties with the sanction of the Board under Section 51 (2).
The Board.
Questionable before the Tribunal under the second proviso to Section 51 (2).
The Tribunal.
Power of approval for the utilisation or investment of the amount realised by the sale or exchange of any Wakf property under Section 51 (3). The Board.
Appealable to the Tribunal within 90 days under Section 51 (5).
The Tribunal.
The power under Section 52 (2) to direct a person in possession of a property transferred to him without the previous sanction of the Board. The Collector at the request of the Board.
Appealable under Section 52 (4) within 30 days.
The Tribunal.
Power under Section 54 (3) to remove encroachment from Wakf property.
The Chief Executive Officer.
A person aggrieved by the order under Section 54 (3) may institute a suit not necessarily against such order, but to establish that he has a right, title or interest in the property. But Lessees, Licensees and Mortgagees cannot institute a suit under Section 54 (4).
The Tribunal.
Direction to the encroacher under Section 55 to remove the encroachment.
The Sub Divisional Magistrate on an application by the Chief Executive Officer, after an order is passed under Section 54 (3).
Power to impose fine by way of penalty under Section 61 (1) or imprisonment under Section 61 (2). Metropolitan Magistrate or Judicial Magistrate of First Class.
Power to remove Mutawalli under Section 64 (1).
The Board.
Appealable under Section 64 (4) within one month provided the removal is for the reasons enlisted in clauses (c) to (j) of sub section (1) of Section 64. The Tribunal. While hearing an appeal, the Tribunal has powers to appoint a Receiver to manage the Wakf, pending a decision on the appeal. Power to assume direct management in the Wakf under Section 65 (1).
By the Board.
Revisable suo motu or on an application by a person interested in the Wakf, under Section 65 (2). The State Government.
Power to appoint and to remove Mutawalli, under special circumstances, under Section 66. The State Government.
Power to supersede the Committee of Management, under Section 67 (2).
The Board.
Appealable under the proviso to sub section (4) of Section 67, within 60 days.
The Tribunal.
Power to remove a member of the Committee (instead of superceding the entire Committee) under Section 67 (6). The Board.
Appealable within 30 days under the second proviso to sub section (6) of Section 67.
The Tribunal.
Power under Section 68 (2) to order a removed Mutawalli or member to deliver possession of records, accounts and properties of the Wakf to their successors. A Magistrate of First Class.
Sub section (6) of Section 68 clarifies that there is no bar for the institution of a civil suit by a person aggrieved by an order passed under this Section, to establish his right, title and interest in the properties specified in the order of the Magistrate.
Power under Section 69 (1) either suo motu or on an application by not less than 5 persons to frame a scheme for the administration of a Wakf. The Board.
Appealable within 60 days under the first proviso to sub section (3) of Section 69.
The Tribunal.
To hold an enquiry under Sections 70 and 71 into the administration of the Wakf.
The Board.
Assessment of the net annual income of a Wakf, under Section 72 (6) to the best of judgment of the Chief Executive Officer, for the purpose of determining the annual contribution payable to the Board. Chief Executive Officer.
Appealable within 30 days under Section 72 (7).
The Board.
To direct under Section 73 (1), Banks or other persons with whom Wakf monies are lying, to pay the contribution leviable under Section 72, out of the monies in their custody. (like a Garnishee order) Chief Executive Officer.
Appealable by the Bank or other person, within 30 days under Section 73 (3).
The Tribunal.
Application for the determination of any dispute, question or other matter relating to the Wakf, under Section 83 (2), by any Mutawalli, person interested in a Wakf or any other person aggrieved by an order made under the Act or the Rules. The Tribunal.
No appeal lies against a decision of the Tribunal under Section 83 (7). But the order of the Tribunal is revisable both suo motu and on an application of the Board or any person aggrieved, by virtue of the proviso to sub section (9) of Section 83. High Court.
Power under Section 94 to direct the Mutawalli to pay an amount necessary for the performance of any act which such Mutawalli has failed to perform. The power exerciseable on an application by the Board to the Tribunal, if the obligation is of pious, religious or charitable nature. The power is also exerciseable on an application by any person interested in the Wakf, if the failure of the Mutawalli is to discharge any other duties imposed upon him under the Wakf.
Power to supersede the Board under Section 99 (1).
State Government.
7. Apart from conferring original, appellate and revisional powers upon the Chief Executive Officer, the Board, the Tribunal and the State Government, the Wakf Act, 1995, (i) imposes certain bars in relation to jurisdiction of Civil Courts and (ii) also prescribes certain preconditions for the exercise of jurisdiction by Civil Courts. They are as follows:-
(i) Section 85 bars any suit or other legal proceedings being laid in any Civil Court in respect of any dispute, question or other matter relating to any Wakf, Wakf property or other matter which is required by or under this Act to be determined by a Tribunal.
(ii)Section 87 bars the institution, commencement or continuation of any suit, appeal or other legal proceedings, for the enforcement of any right on behalf of an unregistered Wakf.
(iii) Section 88 bars the jurisdiction of the Civil Court from entertaining a challenge to a notification or order or decision made by the Central Government or the State Government under the Act, except as expressly provided by the Act.
(iv) Section 89 which is similar to Section 80 CPC, provides for the service of a notice of a duration of 2 months upon the Board, before a suit is instituted against the Board.
(v) Section 90 provides for the service of notice upon the Board in every suit or other proceedings instituted in a Court or Tribunal, relating to title to or possession of a Wakf property. If Board is not served with such a notice contemplated under Section 90 (1), the Board has the right to seek a declaration that the decree or order passed in the suit or other proceedings to be void.
(vi) Section 92 enables the Board to appear and plead as a party to every suit or proceedings in respect of a Wakf or Wakf property.
(vii) Section 93 imposes a bar upon the parties to compromise any suit or proceedings in any Court by or against a Mutawalli relating to a Wakf property, except with the sanction of the Board.
(viii) Section 95, similar to Section 5 of the Limitation Act, empowers the Appellate Authority prescribed under the Act, to entertain any appeal beyond the period of limitation.
8. The above scheme of the Act suggests that the law makers intended to have Special Tribunals constituted by the State Government for the determination of any dispute and to confer wide powers upon those Tribunals, so that the role of the Civil Court is kept to the minimum, though the Act did not impose an absolute bar upon the jurisdiction of Civil Courts. This can be appreciated by a combined reading of Sections 83, 84 and 85 of the Act, which read as follows:-
"83. Constitution of Tribunals, etc. -- (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals. (2) Any Mutawalli, a person interested in a Wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf. (3) Where any application made under sub section (1) relates to any Wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the Mutawalli or any one of the Mutawallis of the Wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:
Provided that the State Government may, if it is of opinion that it is expedient in the interest of the Wakf or any other person interested in the Wakf or the Wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such Wakf or Wakf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh.
(4) Every Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation.
(5) The Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.
(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.
(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a Civil Court.
(8) The execution of any decision of the Tribunal shall be made by the Civil Court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908).
(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit.
84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision.--Whenever an application is made to a Tribunal for the determination of any dispute, question or other matter relating to a Wakf or Wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable, on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute.
85. Bar of jurisdiction of Civil Courts.--No suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any Wakf, Wakf property or other matter which is required by or under this Act to be determined by a Tribunal."
9. In Intazamiya Committee Id Gah Vs. M.P.Wakf Board {AIR 1996 MP 47}, a question arose before a single Judge of the Madhya Pradesh High Court (Gwalior Bench) as to whether the Civil Court's jurisdiction was barred against an order removing a Mutawalli. The case arose under the M.P. Wakf Act, 1954. The provision for removal of Mutawalli under Section 43 of the 1954 Act, was similar to the provisions of Section 64 of the present 1995 Act. Section 43 (4A) of the 1954 Act provided for a remedy of appeal to the Tribunal as against the order of removal passed under any of the clauses (d) to (l) of sub section (1) of Section 43. The case of the petitioner before the Madhya Pradesh High Court fell under one of those clauses and hence was appealable. Therefore the Madhya Pradesh High Court held that the Civil Court had no jurisdiction over a dispute or question over which the Tribunal had jurisdiction. In other words, the Civil Court had only residuary jurisdiction over matters which did not fall within the jurisdiction of the Tribunal. If this principle is accepted and applied to the case on hand, the petitioner will be entitled to file a civil suit, since his case falls under Section 64 (1) (k) and hence not appealable to the Tribunal under Section 64 (4). But such a conclusion may be disastrous for the reason that the deprivation of the right of appeal to the Tribunal under Section 64 (4) to persons removed under Section 64 (1) (a) or (b) or (k) was not with an intention to confer upon them a much better right in the form of a civil suit. Section 64 (1) (a), (b) and (k) cover cases of serious nature than those covered by clauses (c) to (j). This cannot be lost sight of, before deciding the forum of choice available to the petitioner.
10. In A.M.Ali Akbar Vs. Keelakarai South Street Jamath Masjid Paripalana Committee {AIR 2001 Mad 431}, Justice D. Murugesan took a view that the words "any dispute" appearing in Section 83 (1) cannot mean "every and whatever dispute" relating to the Wakf and that one group of members of a Wakf are not entitled to approach the Tribunal for an injunction restraining the other group from interfering in their management.
11. But in Aliyathammada Beethathabiyyapura Pookoya Haji Vs. Pattakkal Cheriyakoya {AIR 2003 Kerala 366}, a Division Bench of the Kerala High Court held that the words "any dispute, question or other matters relating to Wakf or Wakf property" appearing in Section 83 (1) are wide enough to cover not only matters which are specifically conferred on the Tribunal, but also would take within its sweep, "any dispute, question or any other matter relating to Wakf or Wakf property". Overruling a decision of a single Judge of the same Court, the Division Bench of the Kerala High Court held that the intention of the Legislature is to resolve all disputes by one machinery and forum provided in the Act itself, that is the Wakf Tribunal and not by the Civil Court. In paragraph-14 of its decision, the Division Bench held that the powers of the Wakf Tribunal are all pervasive and that the Tribunal could entertain appeals and applications and resolve all disputes, questions or other matters relating to Wakf, Wakf property.
12. In Salam Khan Vs. Tamil Nadu Wakf Board {AIR 2005 Mad 241}, a Division Bench of this Court comprising of Hon'ble Judges Markandey Katju, C.J., and D. Murugesan, J held that the words "any dispute, question or other matters relating to a Wakf or Wakf property" are words of very wide connotation and that since the Tribunal has all the powers of the Civil Court under Section 83 (5), the Tribunal would also have the power to grant injunctions under Order XXXIX, Rules 1 and 2. The Division Bench went to the extent of holding in paragraph-10 that a party can approach the Wakf Tribunal even if no order has been passed under the Act.
13. In M.P. Wakf Board Vs. Subhan Shah {2006 (10) SCC 696}, the Supreme Court held that the power to frame a scheme for the management of the affairs of a Trust vested only in the Wakf Board and not on the Tribunal. While taking the said view, the Supreme Court held that the Wakf Act is a self contained Code and that the Tribunal is an adjudicatory body whose decision is declared final and binding.
14. In Thorayil Juma Masjid M. Committee Vs. Wakf Board {2007 (2) KLT 231}, a Division Bench of the Kerala High Court held that an order passed by the Wakf Board in exercise of its appellate jurisdiction under Section 72 (7) of the Act, cannot be challenged before the Wakf Tribunal under Section 83. The reason given by the Division Bench was that the Act affixed a seal of finality on the order passed by the Wakf Board as an Appellate Authority under Section 72 (7) and that therefore Section 83 cannot be invoked against such an order which has attained finality.
15. But interestingly, in another decision in Madeena Masjid Vs. Kerala Jamaath Islami Hind {2007 (3) KLT 800}, another Division Bench of the Kerala High Court (to which one of the learned Judges who was a party to the decision in Thorayil Juma Masjid case was also a party) held that the law on the point of jurisdiction of the Wakf Tribunals was well settled by the Division Bench decision in Aliyathammada Beethathabiyyapura Pookoya Haji case {2003 (3) KLT 32}. In other words, the latter Division Bench quoted with approval the view taken by the earlier Division Bench that the words "any dispute, question or other matters" appearing in Section 83 are wide enough to include within its sweep not only the matters specifically conferred on the Tribunal, but also any other dispute, question or matter.
16. Thus, in effect, we have on hand two Division Bench judgments of the Kerala High Court and one Division Bench judgment of this Court taking the view that the jurisdiction of the Wakf Tribunals is very wide. But Mr.V.Lakshminarayanan, learned counsel for the Tamil Nadu Wakf Board, contended that there is a small hitch in accepting the contention that as against an order of removal of a Mutawalli on the ground of misappropriation, he would be entitled to file an application before the Tribunal under Section 83 (1). As we have seen earlier, Section 64 (4) provides for an appeal to the Tribunal against an order of removal passed under any of the clauses (c) to (j) under sub section (1) of Section 64. Section 64 (4) does not provide for a remedy of appeal to a person who is removed from the post of Mutawalli for the reasons stated in clauses (a), (b) and (k). These three clauses deal with (i) persons who are convicted more than once for an offence under Section 61 (ii) persons who are convicted for an offence of criminal breach of trust or any other offence involving moral turpitude and (iii) persons guilty of misappropriation or fraudulently dealing with the property of the Wakf. Clauses (c) to (j) list out either disqualifications or disabilities or violations of certain prescriptions. The scheme of Section 64 (1) and Section 64 (4) shows that the remedy of appeal is provided to persons who suffer from disqualifications or disabilities and the violators of certain prescriptions. Thus the intention to deprive a statutory remedy of appeal, to perpetrators of serious offences or violations, is writ large on the face of Section 64 (4). Therefore, if a remedy of approaching the Tribunal under Section 83 is held available to such persons, it would, according to the learned counsel for the respondent, confer a wider or larger remedy to such persons. In other words, what is specifically excluded under section 64 (4) would become available under section 83. It would cease to be a deprivation of a statutory remedy of appeal to those persons, but would amount to conferment of a better statutory remedy. Therefore the learned counsel for the respondent submitted that an interpretation to Section 83 should not lead to such a disastrous result.
17. The fear or apprehension expressed by the learned counsel for the Wakf Board cannot be brushed aside lightly. The powers of the Tribunal under Section 64 (4) are appellate in nature, while the powers under Section 83 (2) are original in nature. A period of limitation of one month is prescribed under Section 64 (4) for filing an appeal. But under Section 83 (2), the prescription of a period of limitation is left to the rule making power of the Government and it appears that no rules have been framed stipulating the period of limitation for filing an application under Section 83. Therefore the remedy under Section 83 (2) appears to be a larger and better remedy than the one prescribed under Section 64 (4). It could not certainly have been the intention of the law makers to confer a better remedy for those removed from the post of Mutawalli for misappropriation and fraud and to confer a less effective remedy upon those removed on account of disqualifications and disabilities.
18. But unfortunately, the above contention, though justified fairly, cannot be accepted. If the above contention is accepted and it is held that a person who is removed from Mutawalliship for the reasons contained in Section 64 (1) (a), (b) or (k) has neither a remedy of appeal under Section 64 (4) nor a remedy of making an application under Section 83 (2), such a person would automatically have the benefit of approaching the Civil Court, by way of suit. As we have seen from the provisions of Section 85, the jurisdiction of Civil Court to entertain any suit or other legal proceeding is barred only in respect of any dispute, question or other matter relating to any Wakf, Wakf property or other matter which is required by or under this Act to be determined by a Tribunal. In other words, the jurisdiction of the Civil Court stands ousted only in respect of matters which fall within the purview of the Tribunal. As a corollary, a dispute which cannot go before the Tribunal either by way of an appeal under Section 64 (4) or by way of an application under Section 83 (2), can certainly be raised before a Civil Court. If it could not have been the intention of the Parliament to make the remedy under Section 83 (2) available to a particular category of persons on account of the seriousness of the allegations against them, equally, it could not also have been their intention to leave it to the jurisdiction of the Civil Court. After all, the logic in the argument of the learned counsel for the respondent cuts at both sides. The original remedy under Section 83 (2) is certainly wider than the appellate remedy under Section 64 (4). But the remedy before a Civil Court is still wider since the powers of a Civil Court are larger than that of a Tribunal. This is very clear from sub sections (5) to (7) and (9) of Section 83 itself. Though sub section (5) makes the Tribunal a Civil Court by a deeming provision and confers all the powers under the Code of Civil Procedure upon the Tribunals, sub section (6) makes it clear that notwithstanding anything contained in CPC, the Tribunal shall follow such procedure as may be prescribed. Sub section (7) makes every decision of the Tribunal final, having the force of a decree of a Civil Court. Such a decision is also made executable, under sub section (8), like a decree of a Civil Court, in accordance with the provision of CPC. Sub section (9) makes it clear that no appeal would lie against a decision of the Tribunal, though the proviso under sub section (9) makes the decision of a Tribunal, revisable by this Court. Therefore if a person is held not entitled either to a remedy of appeal or to a remedy of filing a original proceeding before the Wakf Tribunal, there would be no bar for him to approach the Civil Court. Before a Civil Court, a person has unlimited choices, both by way of procedures and by way of remedies. In simple terms, shutting the small door of a Tribunal to a person, which results in opening a much bigger door in the Civil Court for him, is more disastrous than the consequence that the learned counsel for the respondent fears. Therefore the Court has to adopt such an interpretation to Section 83 (2) on the scope of the jurisdiction of the Tribunal, that would subserve the purpose for which the Tribunal was constituted under the Act. Though the Act did not completely take away the jurisdiction of the Civil Court, the scheme of the Act is aimed at keeping the role of the Civil Court to the barest minimum. Therefore unless the words "any dispute, question or other matter" appearing in Section 83 (2) are construed to have a wider connotation, the purpose of creation of a Special Tribunal under the Act would be defeated.
19. In Maxwell on The Interpretation of Statutes, Twelfth Edition by P.St.J.Langan, the learned Author states as follows:-
"Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system {Shannon Realities, Ltd. Vs. Ville de St. Michel (1924) A.C. 185}, per Lord Shaw at pp. 192, 193. And See Engineering Industry Training Board Vs. Samuel Talbot (Engineers) Ltd (1969) 2 W.L.R. 464}"
20. In Modern School Vs. Union of India {AIR 2004 SC 2236}, the Supreme Court quoted from G.P.Singh's Principles of Statutory Interpretation, Ninth Edition, 2004, the following passage:-
"4. Regard to Consequences :
If the language used is capable of bearing more than one construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoid such results. This rule has no application when the words are susceptible to only one meaning and no alternative construction is reasonably open."
21. To the above list, in my considered view, one more rule of construction has to be included viz., that when there are two alternative interpretations available, both of which result in undesirable consequences, the Court would prefer that interpretation which would result in the least undesirable consequence rather than the one which would result in the most undesirable consequence. In this case, if the petitioner is held not entitled to a remedy under Section 83 (2), he would be entitled to move the Civil Court, which could not have been the intention of the legislature.
22. Moreover, it may be seen from the Tabular Form, given in paragraph-6 above, that wherever there was a dispute with regard to property, the Act prescribed original proceedings before the Tribunal as the remedy. Sections 6 and 7 conferred powers upon the Tribunal to try such disputes by way of a suit. Similarly, the power to issue directions for the administration of Wakf and to settle Schemes for the Management of the Wakf, though conferred under Section 32 upon the Board, the Tribunal was conferred powers under Section 35 (3) to decide a challenge to the Scheme so settled by the Board. Likewise, the question as to whether a property is a Wakf property or not, decided under Section 40 (1) by the Board was made subject to the decision of the Tribunal under Section 40 (2). In short, the Tribunal is conferred even with original powers, wherever the disputes related to Wakf properties. Therefore when a Mutawalli is removed on a charge of misappropriation, the same would naturally relate to a property of the Wakf. Consequently, the interpretation entitling such a person to invoke the jurisdiction of the Tribunal under Section 83 (2) would be consistent with the other provisions and the entire Scheme of the Act.
23. The fear that in an original application under Section 83 (2), a person will have more scope and more space, is to some extent, allayed by sub section (6) of Section 83. As stated earlier, sub section (6) contains a non obstante clause and says that the Tribunal can follow such procedure as may be prescribed. It is upto the State Government to frame rules in exercise of the power conferred by Section 109 (2) (xxiii) of the Act, prescribing a procedure that is summary in nature, for the Tribunal to follow. While the procedure to be followed by a Civil Court cannot be curtailed by the State Government (except by way of amendments to CPC), the procedure to be followed by a Tribunal constituted under Section 83 (1), can always be restricted by issuing rules under Section 109.
24. In the light of the above discussion, I hold that a person who is removed from the Office of Mutawalli, under clauses (a), (b) or (k) of sub section (1) of Section 64, though not entitled to file an appeal under Section 64 (4), will be entitled to file an application before the Tribunal, under Section 83 (2). Hence this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed. It is open to the petitioner to approach the Tribunal under Section 83 (2). The Registry is directed to return the original order impugned in the Civil Revision Petition, to the learned counsel for the petitioner to enable her to approach the Tribunal.
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