Meghalaya High Court
Md. Sulaiman vs . State Of Meghalaya & Ors. on 17 June, 2022
Author: H.S.Thangkhiew
Bench: H.S.Thangkhiew
Serial No. 01
Supp. List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C). No. 320 of 2021
Date of Decision: 17.06.2022
Md. Sulaiman Vs. State of Meghalaya & Ors.
Coram:
Hon'ble Mr. Justice H.S.Thangkhiew, Judge.
Appearance:
For the Petitioner/Appellant(s) : Mr. S.Jindal, Adv.
For the Respondent(s) : Mr. K.P.Bhattacharjee, GA for R 1.
Mr. S.A.Sheikh, Adv. for R 2.
Mr. T.T.Diengdoh, Sr. Adv. with Mr. C.C.T.Sangma, Adv. for R 3.
Mr. K.Khan, Sr. Adv. with Mr. S.K.Hassan, Adv. for R 4.
i) Whether approved for reporting in Yes/No
Law journals etc:
ii) Whether approved for publication Yes/No
in press:
JUDGMENT AND ORDER
1. The petitioner who is stated to be a Joint Mutawalli of Haji Elahi Baksh Waqf Estate is before this Court being aggrieved with the appointment of respondent No. 3 as the other Joint Mutawalli of the said Waqf Estate by the respondent No. 4 vide the impugned letter dated 12-10- 1 2021. Though the petitioner has not raised the issue of right, entitlement or fitness of the respondent No. 3 to be appointed as Joint Mutawalli, challenge to the impugned order has been made basically on two grounds, first that the impugned order has been issued contrary to the provisions of the Waqf Act and second that the petitioner was not heard before issuance of the impugned order.
2. When this instant matter was taken up for consideration, the respondents herein had raised the question of the maintainability of the writ petition. The locus of the petitioner was questioned, and the fact of availability of alternate remedy under Section 83 (2) of the Waqf Act of 1995, in such matters, was highlighted. It has also been contended that no cause of action has been disclosed; that there has been no violation of the rights of the petitioner; that the writ petitioner has filed the instant writ petition only to espouse the cause of his own nephew; and that the petitioner had no role to play in the appointment of the respondent No. 3 as Joint Mutawalli. It has also been brought to the notice of the Court that the matter has a long-standing history of litigation and had travelled up to the Hon'ble Supreme Court, which by order dated 26-09-2019, set in motion the process for appointment of a Joint Mutawalli. The writ petitioner, it is contended at that point of time in the said proceedings before the Supreme Court had shown his disinclination to nominate the Joint Mutawalli as provided under the terms of the Waqf Deed. 2
3. In this backdrop, it would therefore be more expedient if the challenge to maintainability is taken up first, before embarking upon the main matter. However, as it has been pointed out to this Court that there has been a long history of litigation, wherein orders have been passed by the Hon'ble Supreme Court and this High Court, this aspect and the purport and impact of those orders would necessarily also have to be looked into.
4. The subject matter is with regard to a Waqf, which was established by Late Haji Elahi Baksh on 09-11-1936 and formalized through a Waqf Deed dated 11-11-1936. It appears that with regard to appointment as a Joint Mutawalli for the said Waqf, from the line or descendants of one Kammu Mia, one Md. Taiyab had instituted a case being Waqf Case No. 1 of 2002, before the Hon'ble Waqf Tribunal, Shillong, and in this was joined by the respondent No. 3 herein, as an intervenor with a similar prayer that he be appointed as Joint Mutawalli. Both these petitions were rejected by the Waqf Tribunal by judgment dated 19-07-2006, and this order was then taken before the High Court by way of Writ Petition and Civil Revision Petition respectively. By a common order dated 25-07-2007 the High Court upheld the orders of the Waqf Tribunal, which in turn was appealed again before the Hon'ble Supreme Court by way of an SLP. The Hon'ble Supreme Court dismissed the said SLP by order dated 13-12-2007, however, with an observation that the question of law is left open. Subsequent to the dismissal of the SLP, one Md. Abrar, a descendant of 3 Kammu Mia, then approached the Waqf Tribunal with a prayer for appointment as Mutawalli of the Waqf. The petition came to be dismissed and the order of dismissal was put to challenge before this Court in CRP. No. 15 (SH) of 2008. The said civil revision then was dismissed by this Court vide order dated 28-01-2009.
5. The aforesaid judgment was then taken on appeal by Md. Abrar before the Hon'ble Supreme Court which was numbered as Civil Appeal No. 4025 of 2010, and the same was disposed of by judgment dated 26-09- 2019. It appears that with this judgment of the Hon'ble Supreme Court, the path for appointment of a Joint Mutawalli from the line of Kammu Mia was opened, as it was directed in the said order that the respondent No. 1 (therein) i.e., Meghalaya Board of Waqf, was to appoint a competent person from the descendants of the said Kammu Mia, to succeed to the office of Joint Mutawalli. This was also in view of the fact that the respondent No.2 (therein) i.e., writ petitioner herein, had shown a disinclination to nominate a successor as provided under the terms of the Waqf Deed. That meanwhile, one Md. Zakaria who has been arrayed as respondent No. 3 herein, had also approached this Court by way of WP(C). No. 294 of 2015, with a prayer that the Waqf Board provide an opportunity of hearing to him and also to consider his name along with other descendants of Late Kammu Mia while making appointment of Mutawalli. 4 This Court on such terms as submitted, allowed the prayer and disposed of the said writ petition by order dated 28-11-2019.
6. The respondent No.3 on being aggrieved on non-compliance of the order dated 28-11-2019 passed in WP(C). No. 294 of 2015 again came before this Court by way of writ petition being WP(C). No. 236 of 2021. This Court on hearing the parties by order dated 20-09-2021, then directed at paragraphs 5 & 6 which are quoted hereinbelow as follows:
"5. In the above facts and circumstances, I dispose of this writ petition with direction to the respondent to hear the petitioner and comply with the order dated 28-11-2019 passed by learned Single Judge in WP(C). No. 294/2015, if not complied with earlier.
6. The petitioner is directed to remain present before the Chief Executive Officer of the respondent Meghalaya State Wakf Board along with a copy of this order as well as the order dated 28-11-2019 passed in WP(C). No. 294/2015, on 27-09-2021 at 11 am to enable the respondent to comply with this order."
7. In WP(C). No. 236 of 2021, the writ petitioner was not a party to the proceedings, as the relief claimed was only against the Waqf Board. Apparently, being aware about the said order dated 20-09-2021, and the directions contained therein for appearance of Md. Zakaria, the respondent No.3, (petitioner in WP(C). No. 236 of 2021) on 27-09-2021, before the Chief Executive Officer (respondent No.4), the petitioner on that day itself, filed a representation before the respondent No.4 that he too be heard, to oppose any move to appoint respondent No. 3 as Joint Mutawalli. 5
8. In this scenario and in the backdrop of the multiple proceedings and orders passed by the various Courts and Tribunal, the respondent No. 3 then came to be appointed as Joint Mutawalli of the Waqf Estate from Haji Kammu Mia descendants vide Order/Notice dated 12-10-2021 issued by the respondent No.4. The writ petitioner though belonging to the other line of descendants, being aggrieved with the impugned order, is therefore before this Court by way of the instant writ petition.
9. As noted earlier, the question of maintainability is to be first decided before proceeding on the other aspects and merits of the case.
10. Mr. T.T.Diengdoh, learned Senior counsel assisted by Mr. C.C.T.Sangma, learned counsel for respondent No. 3, has submitted that the writ petition does not disclose any cause of action, and the petitioner has no locus to maintain the prayers made in the instant case as it is nowhere to be seen as to in what manner his legal and fundamental rights have been infringed. It is also submitted that the petitioner who is a Joint Mutawalli is in favour of appointing one Imitiaz Ahmed as the other Joint Mutawalli, and it is evident that the instant application has been filed only to espouse the cause of his nephew. The writ petitioner it is contended, has no role to play in the appointment of the respondent No.3 as a Joint Mutawalli, apart from the fact the petitioner by his own accord, had waived his right to nominate a successor from the descendants of Kammu Mia as provided in the Waqf Deed. The learned Senior counsel submits that this 6 has been observed by the Hon'ble Supreme Court in its judgment dated 26- 09-2019, and the writ petitioner therefore by way of the instant writ petition is attempting to reopen an issue which has already been set at rest by the Hon'ble Supreme Court.
11. It has also been strenuously argued that no cause has been made out for exercise of powers under Article 226 of the Constitution of India by this Court, inasmuch as, Section 83 (2) of the Waqf Act, 1995 can be availed for redressal if any, of the petitioner's grievances and as such therefore, the availability of efficacious alternative remedy makes the writ petition incompetent. The learned Senior counsel has placed reliance on the case of Union of India v. Major General Shri. Kant Sharma & Anr. (2015) 6 SCC 773 para 36 and United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110 para 45 on the non-exhaustion of effective alternative remedies. In conclusion, the learned Senior counsel submits that by filing the instant writ application, the petitioner is attempting to oust the respondent No. 3 from the office of Joint Mutawalli in order to retain sole management of the Waqf Estate, which is very valuable and which generates a considerable amount of income every month. It is lastly submitted that the appointment of respondent No.3 is as per directions and orders of this Court.
12. Mr. K.Khan, learned Senior counsel assisted by Mr. S.K.Hassan, learned counsel for respondent No.4 apart from supporting the submissions 7 made by the learned Senior counsel for respondent No. 3, submits that by the order dated 20-09-2021 in WP(C). No. 236 of 2021, this Court had directed the respondent No.3 to remain present before respondent No. 4 for compliance of the said order, and this order he submits has not been put to challenge either by the petitioner nor the Waqf Board (respondent No.2). He submits that the exercise of powers by respondent No. 4 in complying with the order of this Court, is not a case of being delegated by the respondent No.2 under Section 32 (g) of the Waqf Act, nor is it the case of respondent No.4 that respondent No.2 had assigned or delegated duties under Section 25 (3), but that Section 25 (3) in itself, gives plenary powers to the respondent No.4. to perform such duties as may be assigned, and there is no bar to the respondent No.4 to perform duties as assigned under 25 (3) either by the Board or by the Court. He further submits that in the present case, there is a direction from this Court to perform certain duties which was accordingly performed by respondent No.4 and in the absence of any specific stand from the respondent No.2 (Waqf Board), it was immaterial to go into the aspect as to whether the order dated 20-09-2021, meant that it is only the respondent No.2 who was to comply with the direction and not respondent No.4.
13. It is also contended by the learned Senior counsel that there is only one cause of action that had been set in motion by the Hon'ble Supreme Court vide order dated 26-09-2019, which culminated in the issuance of 8 the impugned notice dated 12-10-2021. It is submitted that it is an undisputed fact that the writ petitioner had shown his disinclination to nominate a successor from the line of Kammu Mia which had been recorded by the Hon'ble Supreme Court and though the writ petitioner sought a review against the order dated 26-09-2019, the same was dismissed. It is then further contended that, as the petitioner is already occupying the office of Mutawalli from the other line i.e., from the line of Md. Shafi, and having shown his disinclination to nominate a successor from the other line of Kammu Mia, he has waived his right to nominate and is also estopped from raising any issue with regard to Joint Mutawalliship after the order of the Hon'ble Supreme Court. The learned Senior counsel finally submits the right of the writ petitioner to be heard either before the respondents No. 2 or 4, stood extinguished under the Waqf Deed on the principles of waiver and estoppel, and in view of these facts, in the absence of any fresh cause of action, the writ petitioner has no locus standi to seek directions to be heard before respondents No. 2 and 4.
14. Mr. S.Jindal, learned counsel for the petitioner in reply to the challenge on the maintainability of the writ petition submits that the petitioner is an existing Mutawalli and if in his estimate an illegality is being committed against the Waqf Estate, he has all the rights to approach a Court of law against the perceived illegality. On the question of his having waived the right as he had shown a disinclination to nominate a 9 successor to the deceased Kammu Mia, learned counsel argues that the right to nominate a successor is a specific right that is granted under the Waqf Deed, and at best the petitioner may be considered to have waived only the specific right and this waiver cannot amount to the waiver of all and any other rights that are attached to the position of the Mutawalli. It is also submitted that if the arguments of the respondents are accepted, it will lead to the conclusion that the petitioner is estopped from raising any issue about any aspect of the Waqf, for all time to come which cannot be the case. It is further submitted that an illegality had been caused, inasmuch as, the Hon'ble Supreme Court had directed the respondent No. 2 (Waqf Board) to appoint a Joint Mutawalli but in this case, the respondent No. 4 has stepped in, usurped that power and appointed respondent No.3 as Joint Mutawalli. Therefore, he submits the petitioner has every right and locus to maintain the instant writ petition. In support of his submissions on the point of locus, learned counsel has placed reliance on a judgment in the case of Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578 wherein he submits it has been held that there are three categories of persons who have the locus to file a writ petition, namely, those who have personal or individual right, who have been prejudicially affected by an act of an authority even though he has no interest in the subject matter and persons though not a party to the proceedings before the authority who have substantial and general interest in the proceedings. 10
15. On the point of alternate remedy as provided under Section 83 (2) of the Waqf Act, the learned counsel submits that Section 83 (2) comes with precondition that to approach the Tribunal, a person must be aggrieved by an order made under this Act, which he contends is not the case in the present matter as the impugned order issued by respondent No. 4, is not an order made under the Act and in fact, is an order made de hors the provisions of the Act. The learned counsel then submits that, even if it is assumed that the impugned order is an order made under the Act, the presence of alternative remedy does not by itself, debar this Court from entertaining and adjudicating the writ petition. Learned counsel has placed reliance on the following decisions on this point:-
(i) Committee of Management vs. Vice Chancellor, (2009) 2 SCC 630 (paras 22 and 23).
(ii) Guruvayoor Devaswom vs. C.K.Rajan, (2003) 7 SCC 546 (para 68).
16. I have heard learned counsel for the parties, and have carefully considered the submissions advanced and the materials placed before this Court. It would be worthwhile to note that in the Waqf Estate in question, the Waqf Deed had provided the scheme of management as follows:
"(i) The settlor's son Md Shafi and son in law Kammu Mia, son of late SK Gajnu, shall be joint Mutwallis during their lifetime.11
(ii) On the death of either of the joint mutwallis, the survivor shall be the sole Mutwalli for the time being, and shall have power to nominate his successor from the family line of the settler.
(iii) Each successive Mutwalli thereafter shall have the right to nominate his successor from the same source.
(iv) None who does not profess the Sunni form of Mohammedan faith shall not be entitled to hold the office of Mutwallis.
(v) Should a Mutwalli die without nominating a successor, the senior most member among the lineal descendants of the said Md Shafi and Kammu Mia, if otherwise competent shall be entitled to hold the office of Mutwalli."
It is thus clear from the recitals of the Waqf Deed that there was to be two distinct lines from where the Joint Mutawallis were to be appointed, one from the line of the settlors side namely, Md. Shafi and the other from the line of the son-in-law namely, Kammu Mia. The petitioner undisputedly is the Joint Mutawalli from the line of Md. Shafi and continues to be in office. The entire dispute and question which has resulted in this large volume of litigation is only with regard to the appointment of the Joint Mutawalli from the line of Kammu Mia, and not from the line from which the petitioner is the present Mutawalli.
17. As had been submitted by the parties, the Hon'ble Supreme Court by its order dated 26-09-2019, set in motion the process for the appointment of the successor Mutawalli from the line of Kammu Mia. The 12 petitioner who as per the Waqf Deed being vested with the right to nominate a successor, as observed by the Hon'ble Supreme Court in para 13 of the said judgment, declined to exercise this option, and as such had waived his right to nominate any further. Added to this fact is in the subsequent proceedings before this Court i.e., WP(C). No. 294 of 2015 and WP(C). No. 236 of 2021, the petitioner was neither a party respondent, nor sought impleadment in the said proceedings, and never challenged the final orders passed therein. However, pursuant to the knowledge of the order dated 20-09-2021 passed by this Court in WP(C). No. 236 of 2021, whereby this Court had directed the respondent No. 3 to appear before the CEO, Waqf Board (respondent No. 4) to be heard along with other lineal descendants of Kammu Mia, for consideration of his name for appointment to Mutawalli, the petitioner preferred a representation before the Chief Executive Officer of the respondent No. 2 (Waqf Board), on 27-09-2021, with a request that he too be heard at the time of such consideration.
18. The petitioner as noted earlier being a Joint Mutawalli from the other line and not being part of the proceedings after the matter was disposed of by the Hon'ble Supreme Court, infact became a stranger to the events that took place thereafter and, even with the full knowledge of the same chose not to participate or to assail any of the orders. It appears it was only when the matters appeared to be reaching a conclusion as to the appointment of Joint Mutawalli, that the petitioner chose to pray that he be heard. The locus 13 therefore becomes suspect, as apart from his legal or other vested rights not being in any danger of being infringed upon, or that any action or decision of the Waqf Board in this matter, having any adverse effect on his Joint Mutawalliship, the perceived grievance of the petitioner by way of the representation dated 27-09-2021, can be said to have been made without a cogent ground or a cause of action.
19. The rule of locus standi contemplates and means that unless an individual has been directly injured, or is aggrieved by the act he is challenging, his action will not be upheld by the Court. A person must have suffered some injury or damage from the said impugned act and it is essential to demonstrate that the person approaching the Court must have suffered some injury, or that his legal right has been violated. The right to bring an action before the Court will therefore, entail the presence of a nexus between the injury caused and the person approaching the Court. In the instant case, no injury has been inflicted upon the writ petitioner, nor his interest affected in any way, and his continuance as Mutawalli is not under any threat and as such, the impugned order has no impact on his office.
20. The decision in Jasbhai Motibhai Desai (supra) relied upon by the petitioner to buttress his stand on locus, that the categories of persons who have the locus to file a writ petition are namely, those who have personal or individual right, who have been prejudicially affected by an act of an 14 authority even though he has no interest in the subject matter and persons though not a party to the proceedings before the authority who have substantial and general interest in the proceedings, will have no application in the instant case. It is noted that the Hon'ble Supreme Court has indicated in the said judgment itself, that the expression "ordinarily" indicates that this is not a cast iron rule. Further, the instant case stands on a different footing altogether and is not an exceptional case that will be covered by this ruling, inasmuch as, the petitioner had waived all his rights to participation, and as noted earlier, the outcome of the proceedings before the Waqf Board, has had no effect or resulted in the violation of the legal or fundamental rights of the petitioner in any manner.
21. On the aspect of the action of the respondent No. 4 not being in consonance with, or as per the provisions of the Waqf Act, the petitioner by the very fact that he had sought audience before the respondent No.4, by way of the representation instead of approaching the Courts of law by way of appeal, review against the order dated 20-09-2021 passed in WP(C). No. 236 of 2021, effectively shuts out the contention of the petitioner to question the procedure adopted in implementation of the Court's orders. The entire sequence of events and the actions of the petitioner from the Supreme Court proceedings itself, where he declined to nominate a successor, culminating in the last order of this Court dated 20-09-2021, 15 have clearly estopped the petitioner from seeking any relief by way of the instant writ application.
22. The question of availability of alternative remedy need not be gone into as the petitioner himself lacks locus, as observed above.
23. For the aforesaid reasons, on the ground of maintainability itself this writ petition fails and is accordingly dismissed.
24. No orders as to costs.
Judge Meghalaya 17.06.2022 "Samantha PS"
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