Gujarat High Court
Zubedaben Mohammedmiya & 2 vs Gujarat State Wakf Board & 12 on 16 December, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/18852/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18852 of 2014
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ZUBEDABEN MOHAMMEDMIYA & 2....Petitioner(s)
Versus
GUJARAT STATE WAKF BOARD & 12....Respondent(s)
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Appearance:
MR PJ KANABAR, ADVOCATE for the Petitioner(s) No. 1 - 3
ABATED for the Respondent(s) No. 2
MR MANISH S SHAH, ADVOCATE for the Respondent(s) No. 1
MR TUSHAR L SHETH, ADVOCATE for the Respondent(s) No. 3 - 12
NOTICE SERVED BY DS for the Respondent(s) No. 13
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 16/12/2015
ORAL ORDER
The petitioners have prayed for setting aside of order dated 20th September, 2014 below application Exhibit 5 in Wakf Application No.01 of 2012, passed by the Wakf Tribunal and Principal Senior Civil Judge, Amreli. The said Wakf Application was under Section 83 of the Waqf Act, 1995 and that the same was against order dated 14th September, 2012 passed by the respondent No.1-Gujarat State Wakf Board in the proceedings of evolving a scheme under Section 69 of the Waqf Act.
2. At the threshold of hearing of the petition, a preliminary objection was raised by learned advocate Mr.Tushar Sheth for respondent Nos.3 to 12 that in Page 1 of 9 HC-NIC Page 1 of 9 Created On Fri Dec 18 02:11:27 IST 2015 C/SCA/18852/2014 ORDER view of provision of sub-section (9) of Section 83 of the Waqf Act, 1995, the challenge to the impugned order could not have been by filing writ petition under Article 227 of the Constitution, but it ought to have been a Revision Application.
3. Learned advocate for the petitioners Mr.P.J. Kanabar, learned advocate Mr.Manish S. Shah for respondent No.1 as well as learned advocate for respondent Nos.3 to 12 submitted before the Court that the aforesaid preliminary aspect may be decided first and the challenge in the petition may be examined thereafter. Such being the common request, the Court proceeded to consider the submissions of learned advocates on the said point.
4. Learned advocate for respondent Nos.3 to 12submitted that looking to the provision of Section 83(9) of the Waqf Act, the same contemplates revisional jurisdiction; therefore the challenge to the impugned order could have been by filing Civil Revision Application only and the petition under Article 227 could not have been filed. In support of the contention, learned advocate relied on the following decisions of different High Courts-(1) Srinivas Rao Kasbe S/o Ramchandra Rao Vs State of Andhra Pradesh [2012 CJ(AP) 187], (2) Apex Court decision in Sadhna Lodh Vs National Insurance Company Limited in Appeal (Civil) No.557 of 2003, (3) Lanco Hills Technology Park Private Limited Vs Mahaboob Alam Khan S/o Shah Alam Khan (2010) 4 SCC 772], (4) decision of Madhya Pradesh High Court in Gulam Rasul Page 2 of 9 HC-NIC Page 2 of 9 Created On Fri Dec 18 02:11:27 IST 2015 C/SCA/18852/2014 ORDER Raien Vs Prabandh Samiti Jama Masjid Sadar in W.P. No.6186 of 2010, (5) State of Andhra Pradesh Vs Hafiz K.M. Amjad Basha Siddiqui [2008 CJ(AP) 748], (6) Mohd. Abdul Kareem Vs Andhra Pradesh State Wakf Board [(2004) 3 ALT 254].
4.1 As against the above case of the respondents, learned advocate for the petitioner submitted that the nomenclature was not important. He submitted that what matters would be the scope of consideration by the Court and jurisdictional bounds of the Court would be drawn accordingly. He relied on decision of the Apex Court in S.Suvaramma Vs A.P. Wakf Board [2008(1) ALT 12] and another decision of the Division Bench of Kerala High Court in Irshad s/o.Muhammed alias Bava Vs Chekkutty Haji s/o.Muhammed being Original Petition (Wakf) No.3795 of 2012 and submitted that against the orders passed under Section 83 of the Act, petition under Article 227 was maintainable and entertainable.
5. Sub-section (9) of Section 83 of the Waqf Act, 1995 reads as under.
"83. Constitution of Tribunals etc (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."Page 3 of 9
HC-NIC Page 3 of 9 Created On Fri Dec 18 02:11:27 IST 2015 C/SCA/18852/2014 ORDER 5.1 From the aforesaid provision, it would not be gainsaid that for the purpose of challenging the order passed by the Tribunal under Section 83, sub- section (9) is a provision for challenging the same further and it provides a remedy. The provision demarcates jurisdiction and alienates the nature of such jurisdiction. As is clear from the reading of the provision, the phraseology used by the legislature is what would indicate the revisional powers. The sub- section provides for calling of records and proceedings relating to any dispute, question or matter determined by the Tribunal and further speaks that the High Court upon so calling the record, may satisfy itself as to the correctness, legality and propriety thereof. The High Court may in exercise of such powers reverse, modify or confirm such determination. Whenever the legislature intends to confer a revisional jurisdiction, it couches the provision in the similar phraseology. Therefore from a bare reading of the provision, it can be sadi to be providing revisional jurisdiction and the nature of power indicated is revisional.
5.2 In Lanco Hills Technology Park Private Limited (supra), Division Bench of Andhra Pradesh High Court expressly following the view with which this Court is in agreement.
"At the outset, be it recorded that a decision of the Wakf Tribunal shall be final and binding on the parties to the application and no appeal shall lie against the decision or order whether interim or otherwise given or made by the Wakf Tribunal (Section 83(2), (7) and (9) of the Wakf Act, 1995 (the Wakf Act). Nonetheless the Page 4 of 9 HC-NIC Page 4 of 9 Created On Fri Dec 18 02:11:27 IST 2015 C/SCA/18852/2014 ORDER provision to Section 83(9) of the Wakf Act vests revisinoal jurisdiction in the High Court to call for and examine the records relating to a decision or order of the Wakf Tribunal, for the purpose of satisfying itself as to the correctness, legality or propriety of such an order. The provision enables the High Court to confirm, review or modify the decision impugned. The civil revision petitions, as mentioned at the outset, are curiously filed under Article 227 of the Constitution. When statutory forum is created for redressal of grievance, even if it is High Court, a revision under Article 227 is not maintainable (Sadhana Lodh v. National Insurance Co. Ltd., 2003 AIR (SC) 1561 and Raj Kumar Shivhare v. Directorate of Enforcement, 2010 4 SCC 772."
(Para 2) 5.3 The decisions of other High Courts relied on by learned advocate for the respondents and which are referred to hereinabove, also held the view that sub- section (9) of Section 83 is a revisional jurisdiction. The said view being correct, deserves to be endorsed to.
5.4 Another decision of the Andhra Pradesh High Court in Mohd. Abdul Kareem (supra) in its paragraphs 5, 8, 11 and 13 explains with elaboration. The relevant extracts are brought out hereinbelow.
"5. The learned Standing Counsel for A.P. Wakf Board, the first respondent herein, Shri A.M. Qureshi, and the learned Counsel for second respondent, Shri M.A. Shakoor, oppose the writ petition. They would urge that this writ petition is not maintainable in view of sub- section 99) of Section 83 of the Wakf Act, 1995 (Central Act 43 of 95, hereinafter called "the Act"), which confers power on the High Court to call for records passed by the Wakf Tribunal and revise the same. Reliance is placed on the decision of the Supreme Court in Sadhana Lodh v. National Insurance Company limited. Both the learned Counsel would urge that sufficient reasons are disclosed by the learned Tribunal and that those reasons are not irrational. Ahle-Sunnat-Wai-Jamat has a large number of Muslims believing in the sect, whereas, the total number of members belonging to Ahle-Hadees sect does not exceed one thousand. Having regard to this, the learned Page 5 of 9 HC-NIC Page 5 of 9 Created On Fri Dec 18 02:11:27 IST 2015 C/SCA/18852/2014 ORDER Tribunal permitted Ahle-sunnanth-Wal-Jamath people to commence prayer at 7.30 a.m., and complete by 8.30 a.m. As it would take some time for the congregation to disburse, the petitioners' sect were permitted to perform prayers from 10.45 a.m., onwards. This, according to the learned Counsel for the respondents, is rational and reasonable. The learned Counsel for the second respondent also submits that Original Application filed by the petitioners under Sub-section (2) of Section 94 of the Act itself is not maintainable and, therefore, no interference is called for in this writ petition.
6. ... ... ...
7. ... ... ...
8. As seen from Sub-section (2) and Sub-section (9), though no appeal would lie against it, any decision made by the Tribunal, power is conferred on the High Court to call for examining the records, either on its motion or on application made by the Wakf Board or person aggrieved, relating to any dispute, question or other matter determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality, or the propriety of such powers. This is essentially a revisional power conferred on the High Court by the Parliament to reverse or modify the decision of the Tribunal. There cannot be any doubt that this is an effective alternative remedy available to a person who is aggrieved by the order/decree passed by the Wakf Tribunal. It is well settled that when statute gives a right of appeal or provides other effective alternative remedy like a revision, a writ petition is ordinarily not interfered.
9. ... ... ...
10. ... ... ...
11. The learned Counsel for first respondent also relied on Sadhana Lodh v. National Insurance Co. Ltd. (supra) in support of the contention that when once appeal or revision is not barred, a writ petition under Article 226 of the Constitution of India is not maintainable. In the said case, a question was raised as to whether an Insurance Company which suffered a decree of Motor Accidents Claims Tribunal, can file a petition under Article 226/227 of the Constitution of India, though appeal under Section 173 of the Motor Vehicles Act (MV Act) is available. It was contended that under Section 173 of the MV Act, an insurer has limited grounds available and therefore, a petition under Article 226/227 of the Constitution is maintainable. The Supreme Court rejected the contention and held that availability of limited grounds to the Page 6 of 9 HC-NIC Page 6 of 9 Created On Fri Dec 18 02:11:27 IST 2015 C/SCA/18852/2014 ORDER insurer under Section 149(2) of MV Act, being a product of the statute, it is not open to an insurer to file a petition under Article 226/227 of the Constitution. The Supreme Court ruled out that where a statutory right to file an appeal is provided, it is not open to the High Court to entertain a petition under Article 226/227 of the Constitution. It was also held that if a revision is expressly barred, then only a remedy under Article 227 can be availed, but not the remedy under Article
226. The following passage from the judgment of his Lordship Hon'ble the Chief Justice V.N. Khare needs to be excerpted.
"The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd, Chandigarh vs. Nicolletta Rohtagi and others 2002(7) SCC 456). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution. "
12. ... ... ...
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13. As seen from the above, the jurisdiction of the High Court in disputes relating to Wakfs can be invoked only when an aggrieved party files a revision petition under Sub-section (9) of Section 83 of the Act a writ petition would not be maintainable. In view of the binding precedents, this Court is not inclined to go into the merits of the contentions on other two questions raised by the learned Counsel for respective parties. These are left open to be decided at an appropriate stage in appropriate proceedings."
6. From the provision in Section 83(9) itself and from what is laid down in the decisions considered hereinabove, it has to be ruled that when against any determination or order by the Wakf Tribunal, the statutory prescription of remedy is revisional power and revisional jurisdiction, only revisional jurisdiction of the High Court could be invoked. The proceedings ought to have been registered as a Revision Application. When the nature of two jurisdictions, namely revision jurisdiction and writ jurisdiction are quite different in their width and sweep, the submission could be countenanced that the petition under Article 227 of the Constitution could not have been filed. There is a substance when it is contended that permitting filing of a petition under Article 227 would amount to enlarging the jurisdiction against the statutory provision under Section 83(9) of the Waqf Act, 1995. Therefore it may not be a mere question of different nomenclature as sought to be suggested by learned advocate for the petitioner. In the present case the position is admitted that the order impugned is under Section 83 and what is invoked for challenge the said order is sub-section (9) of Section 83, which is the remedy as per the provision.
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7. The proceedings before this Court for challenging the order of Wakf Tribunal are required to be registered as Revision Application.
8. Learned advocate for the petitioners at this stage requested that this petition itself may be permitted to be converted into a Revision. The request being reasonable, the present petition is permitted to be converted into Civil Revision Application. The same shall be treated as such under sub-section (9) of Section 83 of the Waqf Act. The Registry shall permit conversion and register the present proceedings as Civil Revision Application on or before 21st December, 2015 and thereafter place the same before the appropriate bench.
9. In view of what is ruled above, no further consideration of the matter is necessary at this stage.
(N.V.ANJARIA, J.) Anup Page 9 of 9 HC-NIC Page 9 of 9 Created On Fri Dec 18 02:11:27 IST 2015