Calcutta High Court (Appellete Side)
S.M. Shahid Alam & Ors vs Rayess Alam & Ors on 5 August, 2011
Author: Soumen Sen
Bench: Pinaki Chandra Ghose, Soumen Sen
1
In the High Court at Calcutta
Civil Appellate Jurisdiction
F.M.A. No. 613 of 2010
with
F.M.A. No. 1122 of 2010
In the matter of: -
S.M. Shahid Alam & Ors.
Vs.
Rayess Alam & Ors.
and
M.A.T. No. 268 of 2010
C.A.N. No. 6763 of 2010
In the matter of: -
The Chairman Board of Wakf & Ors.
Vs.
Rayees Alam & Ors.
BEFORE:
HON'BLE JUSTICE PINAKI CHANDRA GHOSE, J.
HON'BLE JUSTICE SOUMEN SEN, J.
For the appellant : Mr. Gonesh Srivastava, Adv.
Mr. Sukanta Das, Adv.
For the respondent : Mr. S. Chowdhury, Adv.
Mr. M.A. Samad, Adv.
Heard on : 17.06.2011
Judgment on : 05.08.2011
Soumen Sen , J. : who would adorn the throne of Mutawallis of Zohrah Begum Wakf Estate is the bone of contention in this appeal. Zohrah Begum was the fifth 2 wife of Tipu Sultan. She, during her lifetime, created a wakf in respect of some of her properties by executing a registered wakf duty in the year 1948. Such wakf was subsequently registered and enrolled as Zohrah Begum Estate under E.C. No.1365. By a resolution dated 2nd November, 2000, the Wakf Board appointed a Committee of Mutawallis in respect of the said Wakf Estate for a period of five years with effect from 22nd February, 2001 purportedly in exercise of its power under Section 63 of the Wakf Act, 1995.
By subsequent impugned resolution dated 8th and 9th October, 2008, the Wakf Board removed Rayees Alam from the office of the said Committee of Mutawallis and by a subsequent resolution dated 25th January, 2006, the Wakf Board approved further appointment of Committee of Mutawallis in respect of the said Wakf Estate for a further period from 15th January, 2006 to 8th October, 2006 purportedly under Section 63 of the Wakf Act, 1995.
Rayees Alam appealed to the Wakf Tribunal for her appointment as mutawalli of the said estate since the Wakf Board had appointed a committee of Mutawalli in respect of the said estate in a illegal manner by denying her legitimate claim. Being aggrieved by the decision of the Wakf Board to exclude him from the committee of Mutawallis an appeal was preferred to the Wakf Tribunal.
The Tribunal, however, dismissed the said appeal by an impugned order dated 8th October, 2007.
3
After the said impugned order was passed, a representation was made by Rayees Alam to the Chairman, Board of Wakf contending that outsiders cannot be appointed as a mutawalli in terms of Section 63 of the Wakf Act and such appointment is required to be made and should be made in terms of the deed of Wakf and the case of the writ petitioner is required to be considered by taking into consideration the terms of the deed of Wakf.
The said order of the Wakf Tribunal was challenged in a writ petition being W.P. No.2477(W) of 2007 during the pendency of the said appeal by an order dated 13th November, 2007. The learned single Judge of this Hon'ble Court directed the Board of Wakf to consider the representation that was made to the Chairman, Board of Wakf by the writ petitioner and to pass a reasoned order decides giving direction for filing affidavits in the main writ application.
During the pendency of the aforesaid proceeding on 17th April, 2008, the appellants filed an application for addition of parties being CAN No.377 of 2008. By an order dated 17th April, 2008 they were added as a party and the Board of Wakf was directed to consider both the representations of the appellants dated 11th October, 2007 as also a representation was made by the added respondents/appellants herein dated 17th September, 2007 and to pass a reasoned order within a period of eight weeks.
4
In compliance with the order dated 13th November, 2007 and the subsequent order dated 17th April, 2008, the Board of Wakf rejected the claim of the writ petitioner on the specious plea that the writ petitioner is not a lineal descendent of the Wakifia and rejected the representation dated 11th October, 2007 filed by the writ petitioner and appointed the appellants as Committee of Mutawalli in purported exercise of power under Section 63 of the Wakf Act.
Subsequently, by a further resolution dated 5th September, 2008, the Board of Wakf confirmed the resolution dated 23rd July, 2008. This has resulted in filing of a miscellaneous application being CAN No.10212 of 2008 filed by the writ petitioner by which the writ petitioner brought on record subsequent developments and challenged the subsequent resolutions dated 23rd July, 2008 and has confirmed on 5th September, 2008.
It appears from the registered deed of Wakf executed by the fifth wife of Tipu Sultan, she appointed Prince Hyder Shiko Mutawalli and his heirs "generation after generation".
On 22nd September, 1978, Feroze Alam, the father of the writ petitioner, was appointed as Mutawalli of the Wakf Estate by an ex parte order passed in Misc. Judicial Case No.97 of 1978.
In the said proceeding Feroze Alam prayed for his appointment as Mutawalli of Wakf Estate of Zohrah Begum. The learned Court below considered 5 the documents filed along with the said petition as also examined Feroze Alam and thereafter ordered as follows:
"That the Misc. Judicial case is allowed. The petitioner Feroze Alam be appointed as Mutawalli of Zohrah Begum Wakf Estate (E.C. No.1366 in the office of the Commissioner of Wakfs, West Bengal)". It would appear from the said order that the notice of the application was served upon the Commissioner of Wakf. In the said proceeding Feroze Alam had asserted his right as the fit and eligible person for the office of Mutawalli.
The learned Court below considered the Touliatnama along with the English Translation produced and such exhibit was considered along with oral evidence of Feroze Alam before granting such relief.
In allowing the said application, the learned Court below has taken note of 204(2)(d) of Mulla's Mahomedan Law which is reproduced hereinbelow:
"204(2)(d) if no such appointment is made, the Court may appoint a mutawalli. In making the appointment the Court will have regard to the following rules: -
(i) the Court should not disregard the directions of the founder except for the manifest benefit of the endowment (i);
(ii) the Court should not appoint a stranger, so long as there is any member of the founder's family in existence qualified to hold the office
(j);6
(iii) Where there is a contest between a lineal descendant of the founder and one who is not a lineal descendant, the Court is not bound to appoint the lineal descendant, but has a discretion in the matter, and may in the exercise of that discretion appoint the other claimant to be mutawalli (k)."
Thereafter such judicial order was passed on merit. There is an illuminating passage on Mulla's Mahomedan Law on lineal descendant which is reproduced hereinbelow:
"Lineal descendant. - In Shahar Banoo v. Aga Mahomed, the founder was a Shia and his lineal descendant, who claimed to be appointed mutwalli, but the High Court set aside the appointment and appointed another person. This was not on the ground that she was not qualified, but because as a female she would have to perform many of her duties by deputy, and as a Babi she might not take zealous interest in carrying out the religious observances of the Shia school for which the trust was founded. This decision was upheld by the Privy Council on appeal. In considering the authorities their Lordships said:
"The authorities seem to their Lordships to fall far short of establishing the absolute right of the lineal descendants of the founder of the endowment, in a case like the present, in which that founder has not prescribed any line of devolution." If the line of devolution is prescribed from generation to generation it does not follow that a female, or persons claiming through females, are excluded though it may not be desirable to appoint a female owing to their habits and seclusion. In a case where the founder of the Wakf was a Mahomedan lady who had appointed herself first mutawalli and directed that the succession should be to the legal heirs of the second 7 mutawalli and provided that the descendants (ba farzandan- farzandan) should succeed as mutawallis, it was held that the words ba farzandan did not exclude the daughters of male descendants, but excluded the children of daughters."
Feroze Alam acted as a mutawalli till 9th October, 1985 and was removed thereafter. He challenged such removal by preferring an appeal and was reinstated in terms of an order dated 9th October, 1987 passed by the Judicial Secretary.
Even after reinstatement by the order mentioned hereinabove, Feroze Alam was again removed on 13th February, 1990 till 5th June, 1997 which according to the writ petitioner was illegal and on grounds which are clearly motivated. Feroze Alam claimed to have challenged the said proceeding but it appears that he expired on 5th June, 1997 and such challenge, accordingly, remained unanswered. Thereafter, on 1st/2nd November, 2000, the writ petitioner was appointed as joint Mutawalli along with four others for a period of five years in terms of Section 63 of the Wakf Act, 1995. However, his continuation was for a short duration and he was removed on 8th September, 2002 on the allegation that "he did cooperate with other joint Mutawallis".
The writ petitioner alleged that though the appointment of joint Mutawallis was for a period of five years i.e. upto 31st October, 2005 the tenure of the joint Mutawallis were illegally extended upto 8th October, 2007. Such illegal actions 8 culminating in three several resolutions were challenged before the Wakf Tribunal being appeal No.24 of 2006.
The Wakf Tribunal dismissed the appeal, inter alia, holding "resolutions or orders" passed by Wakf Board under Section 63 of the Wakf Act, 1995 cannot be challenged by filing appeal and further held that "resolutions or orders" passed under Section 63 of the Wakf Act, 1995 is not appealable. It was also held that though under Section 63 (2) of the Wakf Act, 1995, an application could be made bore the Wakf Tribunal within the permissible period. There is no provision for condonation of delay and the Wak Tribunal cannot entertain time barred applications. As such it was held that there would be no scope for the Wakf Tribunal to go into the merits of the appeal. There is no forum of appeal against the said order of the Wakf Tribunal.
Thereafter as stated earlier, a representation was made on 11th October, 2007 and proceedings were initiated before this Hon'ble Court for setting aside of the impugned resolutions dated 8th October, 2007 and 23rd July, 2008 as confirmed on 3rd September, 2008.
It appears to us that all the authorities including the Board of Wakf acted improperly and mindlessly in considering the representations and it appears from the reading of the orders that there had been a clear disposition of mind against the petitioner by all such authorities. While the Wakf Tribunal failed to 9 exercise a jurisdiction on some erroneous interpretation of law and technicalities, the Board of Wakf did not give any reason for rejecting the said representation. It is surprising to note that the order of the learned District Judge that was relied upon was not even considered. The argument of the writ petitioner also was not considered and the claim of the petitioner was rejected on some unsustainable plea, namely, "the claim of Rayees Alam that he is a lineal descendant of Wakifia, does not hold good as it has been argued that under the provisions of the Mahomedan Law a lineal male descendant cannot be accepted if two female descendants intervened."
The Board of Wakf did not come to any independent finding that what was argued is the correct enunciation of law. The Board of Wakf while dealing with the order of the learned District Judge simply records that the said order was passed ex parte. The Board of Wakf did not feel it necessary to devote some attention and give due and proper weightage to an order passed by a Superior Judicial authority. The said learned District Judge had taken into consideration all relevant facts as also the authorities on the subject before allowing the claim of Feroze Alam. It was expected that the Board of Wakf should have given more attention that of the said order of District Judge deserves instead of dealing with the order in such a cryptic, reckless and cavalier manner.
Apart from the aforesaid a bare reading of the said impugned resolutions give an unmistakable impression that apart from recording 10 certain statements and arguments there had been no conscious consideration of the points urged and/or argued before the said Board of Wakf. Any authority whether judicial or quasi-judicial is under an obligation and duty to record reasons and more so when such orders are open to challenge and subject to judicial scrutiny. Reason gives clarity and enables a Court of law to really understand the basis for passing of an order.
The requirement for giving reasons for the decision is of the essence and is virtually a part of the "due process". The importance of giving reasons has been recently noticed in Kranti Associates (P) Ltd Vs. Masood Ahmed Khan reported in 2010 (9) SCC 496 in the manner following:
"(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(a) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(b) Reasons reassure that discretion has been exercised by the decision-
maker on relevant grounds and by disregarding extraneous considerations.
(c) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. 11
(d) Reasons facilitate the process of judicial review by superior courts.
(e) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the sour of justice.
(f) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(g) Insistence on reason is a requirement for both judicial accountability and transparency.
(h) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(i) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.
(j) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny.
(k) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence.
(l) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process"."
12Unfortunately, Board of Wakf in complete remiss of such duty and obligation dealt with such objection in a manner contrary to law and in violation of the principles of natural justice.
The common thread of objections by the appellants was that against the order of the Board of Wakf, the aggrieved writ petitioner should approach the Tribunal and in support of that the appellants have relied upon the following decisions:
(i) Punjab National Bank Vs. O.C. Krishnan & Ors. reported in AIR 2001 SC 3208.
(ii) Whirlpool Corporation Vs. Registrar of Trade Marks reported in AIR 1999 SC 22.
(iii) Board of Wakf, West Bengal & Anr. Vs. Anis Fatma Begum & Anr. reported in (2011) 1 WBLR (SC) 308.
There is no dispute with regard to the proposition of law that if there is an alternative efficacious remedy, the same should be pursued. It is also equally well-settled that the plea of alternative remedy does not affect the jurisdiction of a writ court. The power to exercise jurisdiction under Article 226 of the Constitution of India flows from the Constitution itself. The Wakf Tribunal as also the Board of Wakf acted illegally, irrationally and improperly in passing the 13 said orders and we are constrained to exercise our jurisdiction under Article 226 of the Constitution of India to remedy such wrong. While the statutes are temporary, if not seasonal, the Constitution is permanent and an all time law and such powers can always be exercised by the High Courts if it appears to the Court that a manifest injustice is being caused to the writ petition or there has been a flagrant violation of the principles of natural justice (Jamshed Hormusji Wadia Vs. Board of Trustees, part of Mumbai 2004(3) SCC 214).
As mentioned above the manner in which the proceedings have been conducted initially by the Wakf Tribunal and then by the Board of Wakfs, we are of the considered opinion that in such facts and circumstances it would be improper to relegate the writ petitioner again to the Wakf Tribunal who on an earlier occasion completely misdirected its mind in considering the earlier objection of the writ petition.
Moreover, the subsequent impugned resolutions, namely, the resolution dated 23rd July, 2008 as confirmed by the resolution dated 5th September, 2008 were passed pursuant to the direction given in the writ petition and such direction was accepted by all the parties and were acted upon.
The said two impugned resolutions are offshoot of such direction passed by this Hon'ble Court on 13th November, 2007. The writ petitioner could have 14 amended the writ petition but instead they have filed a Misc. application to bring on record such subsequent orders:
"Heard the learned Counsel for the petitioner as well as for the State authorities.
It appears that the present writ petitioner submitted a representation as far as back on 11.10.2007. It is in connection with the appointment of recorded Mutwali in respect of the Jahara Begum Wakf Estate. It is expected that the concerned authority will consider the said representation in accordance with the law and pass necessary order - certainly after giving an opportunity of hearing to the petitioner.
This may be done within a period of two weeks from the date of communication of this order.
Since the grievance as ventilated in the writ application involved certain other aspects, let affidavit-in-opposition be filed by the respondents within two weeks from date and reply thereto, if any, be filed within a period of one week thereafter.
Liberty to mention."
The decision of the Hon'ble Supreme Court (2011) 1 WBLR (SC) 308 is distinguishable on facts. The said proceeding appears to have been originated in an originating summons suit which it appears, was held to be not the correct procedure adopted for determination of the questions that were raised in the said summons. In the instant case, the decision of the Wakf Tribunal that no appeal lies in respect of resolutions or orders passed under Section 63 of the Wakf Act was initially challenged and it was during the pendency of the said proceeding, 15 direction was given by this Hon'ble Court in the pending writ application for consideration of both the representations filed by the writ petitioner as also the added respondent for consideration by the Board of Wakfs. The said order was accepted by all the parties and no challenge was thrown at that stage with regard to the maintainability of the writ petition. Moreover, as stated hereinabove there cannot be any limitation on the exercise of power by constitutional courts and in view of such abominable conduct on the part of the respondent authorities, we thought it fit to exercise our jurisdiction and set aside the order of the Tribunal as also the resolutions passed by the Board of Wakf.
Moreover, it would not appear from the order under challenge that any argument was made regarding the maintainability of the writ petition and the said writ petition as it appears from the order under challenge was argued on merit. In setting aside the impugned resolutions, the learned single Judge has given reasons with which we are in agreement. The learned single Judge has taken note of the order of the learned District Judge and the fact that nothing was placed before the Hon'ble Court to show that the writ petitioner is not entitled to act as Mutawalli. Some of the relevant observations of the learned single Judge in this regard are reproduced hereinbelow:
"In the said order, the learned District Judge at Alipore also recorded the fact that the deceased father of the petitioner being the sole descendant of the said Haidar Shikho was available in West Bengal in the area of Gurden Reach 16 Police Station and, therefore, considering the provisions of the Deed of Wakf, allowed the claim of the said deceased father of the petitioner for holding the office of the Mutwalli of the aforesaid Wakf Estate and appointed him Mutawalli of the said Zohra Begum Wakf Estate by issuing specific order which is reproduced hereunder:
"Ordered That the Misc. Judicial case is allowed. The petitioner Feroze Alam be appointed Mutawalli of Zohra Begum Wakf Estate (E.C.No.1365 in the office of the commissioner of Wakfs, West Bengal).
Sd/- R. Mahapatra."
After the death of said Feroze Alam, the father of the petitioner, the Board of Wakfs again refused the claim of the petitioner to act as Mutawalli in respect of the aforesaid Wakf Estate though in terms of the Deed of Wakf the petitioner being the sole descendant of erstwhile Mutawalli, Feroze Alam is entitled to act as Mutawalli. The said Feroze Alam, the father of the petitioner was undisputedly, accepted as sole descendant of Prince Haidar Shiko and was allowed to act as Mutawalli in terms of the deed of Wakfs and also pursuant to the order passed by the learned District Judge at Alipore in Misc. Judicial Case No.97/78.
By the impugned resolution dated 23rd July, 2008, the respondent-Board of Wakfs, West Bengal disputed the claim of the petitioner to act as Mutawalli on the ground that under the provisions of Mohamedan Law lineal male descendant 17 could not be accepted if two female descendants intervened although no such provision has been shown before this Court at the time of hearing. In any event, the aforesaid plea cannot be allowed to be taken by the Board of Wakfs, West Bengal at this stage for the purpose of rejecting the claim of the petitioner herein in view of the fact that the earlier order passed by the learned District Judge at Alipore in Misc. Judicial Case No.97/78 specifically recognized the deceased father of the petitioner as sole descendant of Prince Haidar Shiko, the Mutawalli appointed by Zohra Begum and considering the provisions of the Deed of Wakf, the learned District Judge at Alipore also appointed the father of the petitioner as Mutawalli of Zohra Begum Estate which was also accepted and acted upon by all concerned. In terms of the specific provisions of the aforesaid Deed of Wakf, the heirs of Prince Haidar Shiko should remain in possession of the Wakf Properties generation after generation and Feroze Alam, the deceased father of the petitioner was recognised and accepted as the sole descendant of Prince Haidar Shiko available in West Bengal and allowed to act as Mutawalli. Therefore, after the death of said Feroze Alam there should be no difficulty to accept his son, namely, the petitioner herein as sole descendant of Prince Haidar Shiko and under the aforesaid deed of wakfs, the said petitioner should be appointed as Mutawalli in respect of the said Zohra Begum Wakf Estate being the sole descendant of Prince Haidar Shiko available in West Bengal.
For the aforementioned reasons, the order passed by the Board of Wakfs, West Bengal pursuant to the resolution dated 23rd July, 2008 appointing a 18 committee consisting of five members, therefore, cannot be sustained in the eye of law as in the present case, it cannot be said that no one can be appointed in terms of the aforesaid Deed of Wakf as Mutawalli.
In the aforesaid circumstances, the impugned resolution dated 23rd July, 2008 passed by the Board of Wakfs, West Bengal being Annexure P-10 of the application cannot be sustained and the same is, therefore, quashed."
We are in complete agreement with the said finding of the learned Trial Judge. In view of the aforesaid reasons both the appeals fail, however, there shall be no order as to costs.
Photostat certified copy of this judgment, if applied for, be supplied to the parties.
(SOUMEN SEN, J.) I agree:
(PINAKI CHANDRA GHOSE, J.)