Punjab-Haryana High Court
Fayyaz Ali Khan Son Of Late Abdul Majid ... vs Zahida Begum Widow Of Riaz Ali Khan on 27 August, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.3076 of 2008 (O&M)
Date of decision: 27.08.2013
Fayyaz Ali Khan son of late Abdul Majid Khan, resident of
Shekhupura, Pakistan, through its General Power of Attorney Junaid
Ali Khan son of Shoukat Ali Khan, resident of House No.3011,
Phase VII, Mohali.
...Petitioner.
versus
Zahida Begum widow of Riaz Ali Khan, resident of Sheesh Mahal,
Deewan Khana, Malerkotla, District Sangrur, and others.
....Respondents
II. Civil Revision No.3168 of 2008 (O&M)
Punjab Wakf Board, through is CEO, Sector 22-A, Chandigarh, now
through its Estate Officer Malerkotla Shri Rashid Mohammad.
...Petitioner.
versus
Zahida Begum widow of Riaz Ali Khan, resident of Sheesh Mahal,
Deewan Khana, Malerkotla, District Sangrur, and another.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Mansur Ali, Advocate,
for the petitioner in CR No.3076 of 2008.
Mr. Jai Bhagwan, Advocate,
for the petitioner in CR No.3168 of 2008,
and for respondents 2 and 3 in CR No.3076 of 2008.
Mr. Ranbir Singh Pathania, DAG, Punjab.
----
Kumar Sanjeev
2013.09.03 10:22
I attest to the accuracy and
integrity of this document
chandigarh
Civil Revision No.3076 of 2008 (O&M) -2-
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J. (Oral)
1. Both the revisions are against the same order passed at the interlocutory stage by the Wakf Tribunal. The Civil Revision No.3076 of 2008 is at the instance of a person, who had filed a petition for impleadment and pending consideration for impleadment, the impugned order had come to be passed. The Civil Revision No.3168 of 2008 is at the instance of the Wakf Board against which the suit had been instituted by the first respondent. The first respondent-Zahida Begum in the respective civil revisions was the plaintiff in the suit.
2. The suit related to the estate of Nawab Iftikhar Ali Khan. Nawab Iftikhar Ali Khan had expired leaving behind his widow Sajida Begum. Sajida Begum died on 30.07.2006. She had two brothers Fayyaz Ali Khan and Riaz Ali Khan. Riaz Ali Khan had migrated to Pakistan where he has also subsequently died. Riaz Ali Khan's widow Zahida Begum is the plaintiff, first respondent herein. Fayyaz Ali Khan is the other brother, who is the petitioner in Civil Revision No.3076 of 2008.
3. After the death of Sajida Begum, the suit was filed for a relief of permanent injunction restraining the defendants viz. Wakf Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3076 of 2008 (O&M) -3- Board and the State functionaries from dispossessing the plaintiff without due course of law and for mandatory injunction to release the property in question from illegal acquisition and unlocking and de-sealing the residential portion of the building. The building in respect of which the plaintiff was staking her interest was a palace at Malerkotla called as 'Sheesh Mahal'. The cause of action for the suit was a claim by the Wakf Board that the Mahal had been made a subject of a gift in its favour by the Nawab Iftikhar Ali Khan and his wife Sajida Begum was only to be a mutwalli. There were reported to be some heirlooms of immense value in the palace and it appears, the State was also staking some claims for the valuables. When Sajida Begum died, there was literally a scramble for possession by the plaintiff and the petitioner herein, who is the other brother of Sajida Begum. In order to maintain the law and order situation, the Sub Divisional Magistrate, Malerkotla, had passed an order on 30.07.2006 that the Mehal and the valuable articles lying therein were required to be sealed in the presence of Naib Tehsildar and put under adequate police guards round-the-clock immediately and to report compliance. In the suit filed, the plaintiff had impleaded the State as a 3rd defendant.
4. The plaintiff had sought for interim relief that the portions of the building which had been locked should be unlocked through an independent application and the Wakf Tribunal has Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3076 of 2008 (O&M) -4- passed the impugned order dated 21.05.2008. The impugned order records the fact of an application for impleadment filed at the instance of the petitioner in Civil Revision No.3076 of 2008 and while putting it up for filing reply to the application, it proceeded to pass the order recording the further the fact that a Local Commissioner had been appointed, who had inspected the building, opened the doors with the keys and got counted the articles lying in the premises, as pleaded in the petition. The Tribunal directed that the respondents would not cause any obstruction to the plaintiff against the use of the premises and the Tribunal also directed that the plaintiff shall not remove the articles, list of which had been prepared by the Local Commissioner. The Tribunal observed that it was merely an interim direction and it would be subject to the final outcome of the said application.
5. There have been some subsequent developments before the Tribunal itself which would also require to be noted. The application for impleadment, sought at the instance of the petitioner in Civil Revision No.3076 of 2008, appears to have been allowed. The plaintiff herself has filed an application for amendment of the plaint seeking for declaration that the property was not wakf and that it was her absolute property obtained by her under Will, said to have been executed by Sajida Begum on 21.07.2006. The suit was for declaration that the property did not belong to wakf and for other Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3076 of 2008 (O&M) -5- reliefs.
6. In the revision petition, the grievance of the petitioner, who was a third party originally to the petition, is that the Wakf Tribunal had no jurisdiction to allow for unlocking of the locks and allowing for the articles to be removed. The Commissioner, who was appointed, had not taken inventory of all the articles in all the rooms and the Commissioner's report itself revealed that the room Nos.6, 7 and 9 had remained locked and that he had not carried out any inventory. The petitioner's grievance is by virtue of the interim order passed by the Wakf Tribunal all the rooms had been unlocked and the plaintiff had secreted all the articles. It is also the contention that the suit for injunction was incompetent and the interim relief could not have been ordered. When there was an order passed by the Executive Magistrate observing the status quo to be maintained, allowing for sealing of several rooms where valuables had been kept, posting guards to prevent a law and order situation and the pilferage of articles, the Wakf Board would make common issues with the petitioner in its own civil revision petition to urge that the building had been granted in wakf through a gift deed dated 09.12.1971 executed by the Nawab Iftikhar Ali Khan which recites specifically that his own widow was only to be a mutwalli for the building and not as owner thereof with specific prohibition against bequest or gift by her.
Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3076 of 2008 (O&M) -6-
7. The counsel for the respondent-plaintiff would contend that the civil revision filed by the petition in CR No.3076 of 2008 is not maintainable since the petitioner was not a party to the suit and a person, who is not a party, cannot challenge the correctness of the order in revision without obtaining leave of the Court. The counsel would refer me to the decisions of the Supreme Court in State of Punjab (now Haryana) and others Versus Amar Singh and anohter-AIR 1974 Supreme Court 994; Smt. Ganga Bai Versus Vijay Kumar and others-AIR 1974 Supreme Court 1126(1); Nationall Human Rights Commission Versus State of Arunachal Pradesh and another-AIR 1996 Supreme Court 1234; Anwar Versus The State of J. and K. -AIR 1971 Supreme Court 337; Chairman, Railway Board and others Versus Mrs. Chandrima Das and others- AIR 2000 Supreme Court 988; and Dharam Dutt and others Versus Union of India and others-AIR 2004 Supreme Court 1295 to contend that an appeal or revision by a person, who is not a party, is not competent to file the revision without a specific sanction from court. The counsel for the petitioner would join issue on this objection by stating that the petitioner was subsequently impleaded as a party and that would itself validate the error in procedure, if any, in admitting the civil revision. The further objection taken by the counsel for the respondent-plaintiff is that the petition is not competent to make a challenge under Article 227 of the Constitution of India, for, the Constitutional protection shall be Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3076 of 2008 (O&M) -7- available for only to a citizen and since the petitioner is a citizen of Pakistan, he could have no relief in the jurisdictional ambit of Article 227.
8. A person, who is not a party to the proceedings, cannot prefer an appeal or revision without the sanction of the Court. I would have no difficulty in taking it as a fundamental precept that cannot be doubted. If the Court has in a petition brought under Article 227 at the instance of a person complaining that there was a serious error in the order passed by the Tribunal which had no jurisdiction to pass the order that it did, I would only test it on another parameter viz., the power of the High Court in its supervisory jurisdiction to appraise orders or give directions to all the Courts and Tribunals subordinate to it, throughout its territory in relation to which it exercises its jurisdiction. That Malerkotla falls within its jurisdiction and that this Court has a supervisory power over Wakf Tribunal cannot, therefore, be disputed. If it were to be taken as a civil revision filed against the order of the Wakf Tribunal under the Wakf Act, I will apply the normal rules of standing for challenging the correctness of the order. If the civil revision is, however, brought under Article 227, once the order is brought before the Court, the Court assumes its jurisdiction and it ceases to be necessary to examine the locus standi of the petitioner. In such an event, it is the paramount power of the High Court that would Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3076 of 2008 (O&M) -8- assume significance. In this case what is brought before the Court is an unusual order passed by the Wakf Tribunal allowing for unlocking of rooms and making meaningless a direction given by the Executive Magistrate in the year, 2006 when he perceived a law and order situation through a scramble for possession and for valuables in Sheesh Mahal. I will, therefore, find that the objection regarding the petitioner invoking jurisdiction cannot be countenanced and I would hold that the Court's power to exercise jurisdiction obtained on a literal alarm bell sounded by any person, who may have a modicum of interest in the properties. The petitioner, who claims the right under a Will and who is the immediate brother of Sajida Begum, cannot be said to be a stranger, whose attempt to invoke the jurisdiction of this Court could be repulsed by an objection in the manner taken by the plaintiff. Even a plea by the plaintiff that the power of the Court to invoke Article 227 cannot be raised at the instance of a person, who is not a citizen, cannot obtain any credence, for the same reason of what I have formulated regarding the rule of standing.
9. There is an additional ground also urged and which, in my view, correctly, that right under Article 300-A is not necessarily confined only to citizens and a right to property though not a fundamental right, is still available for its exercise for any person to urge that such a right in the property cannot be expropriated Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3076 of 2008 (O&M) -9- otherwise than by procedure established by law. In this case, a non- citizen's claim that his own right to the property was being stifled by an incompetent order will enable even the petitioner to challenge the correctness of the order. It is a matter of record that the petitioner was subsequently also impleaded and, therefore, if there was ever an error in procedure in not seeking the sanction, it must only be taken to be corrected by a post facto event of the impleadment of third party petitioner as a party to the petition. As regards the nature of the order, the learned counsel for the respondents states that she was actually in possession of the Sheesh Mahal along with the deceased during all her life and the relief which she had sought for was only to ensure that all the rooms which had been locked were unlocked, consistent with her right to possession in respect of the building. The counsel for the plaintiff would also contend that the petitioner had himself filed a suit before the Court at Chandigarh in relation to the estate of Sajida Begum and the suit resulted in a compromise. There has been no claim in relation to the alleged valuables and if he has any claim as regards the same, he cannot have any adjudication made before the Wakf Tribunal and it should have been only in the civil suit. The Tribunal itself will be competent to decide only of a dispute whether a particular property was constituted in wakf or not and the inter se property dispute between parties relating to movables cannot be a matter of adjudication by the Wakf Tribunal. Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3076 of 2008 (O&M) - 10 -
10. I will partially accept the contention raised on behalf of the counsel for the plaintiff, since the Wakf Board itself is not staking claim to any of the movables as indeed it cannot, for, the document of gift on which it has placed reliance merely refers to Sheesh Mahal and not with reference to the movables, jewelleries or heirlooms. If there is a dispute amongst the brothers or brothers' children of Sajida Begum or the other legal heirs of Nawab Iftikhar Ali Khan in relation to the movables, I would provisionally observe that it would be a matter that would fall outside the jurisdiction of the Wakf Tribunal. The counsel for the Wakf Tribunal however wants to contend that the gift deed makes reference also to some movables as gifted to the wakf. I do not find any such expression, but I do not want to prejudge the issue and I will leave it for the Wakf Tribunal to consider, if ever there is any plea by the Wakf Tribunal that it had title to the movables also.
11. When the Executive Magistrate had passed an order, apprehending a law and order situation, and had directed the rooms where valuables had been in existence to remain locked, the Wakf Tribunal was exceeding its jurisdiction by allowing the locks to be removed. It was not the plaintiff's grievance that she was not allowed to live in Sheesh Mahal. The direction could not have been for anything other than living in the Mahal and the order passed by the Wakf Tribunal, especially after the Local Commissioner's report Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3076 of 2008 (O&M) - 11 - made reference to 3 of the rooms as still kept in lock and not opened, the Wakf Tribunal ought not to have directed the unlocking of the said rooms. If the rooms had been unlocked and the movables inside had been removed as claimed by the petitioner, I do not know as to how it will be possible for me to give a direction for restoration. I would only leave with a direction that the order passed by the Wakf Tribunal unlocking the rooms which had been locked by the Executive Magistrate to preserve the heirlooms could not have been directed to be unlocked. They would require to be restored to the status quo ante to the order. The State of Punjab, who is a party to the proceedings, shall secure status quo ante through its subordinates and lock those rooms, which had been kept in its lock and key. The State shall be at liberty to undertake such investigation as it deems fit to ascertain the existence of movables and also restore them to the extent possible. They shall be sealed and protected with such number of security guards as would be necessary and sufficient number of police posting to ensure that there is no further loss of property or any scuffle amongst the persons, who claim the estate of Nawab Iftikhar Ali Khan.
12. The order passed by the Tribunal shall stand modified and the civil revisions are allowed to the above extent. There shall be however no direction as to costs.
Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3076 of 2008 (O&M) - 12 -
13. I clarify that any of the observations which I have made in these two civil revisions are only for the purpose of disposal of these petitions and will have no bearing to the ultimate disposal of the suit filed by the plaintiff before the Tribunal.
(K.KANNAN) JUDGE 27.08.2013 sanjeev Kumar Sanjeev 2013.09.03 10:22 I attest to the accuracy and integrity of this document chandigarh