Gujarat High Court
Qureshi Mohammad Ali Abdul Rashid vs Gujarat State Wakf Board on 6 August, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/CRA/222/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 222 of 2019
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QURESHI MOHAMMAD ALI ABDUL RASHID
Versus
GUJARAT STATE WAKF BOARD
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Appearance:
for the Applicant(s) No. 2,3,4,5,6,7
MR HARNISH V DARJI(3705) for the Applicant(s) No. 1
MR MANISH S SHAH(5859) for the Opponent(s) No. 1
MR MTM HAKIM, ADVOCATE WITH SAQUIB S ANSARI(7152) for the
Opponent(s) No. 2,3,4,5,6
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 06/08/2019
ORAL ORDER
1. The present Civil Revision Application has been filed u/s. 115 of the Code of Civil Procedure for seeking following reliefs;
"(A) Your Lordships may be pleased to admit and allow the Civil Revision Application.
(B) Your Lordships may be pleased to allow Cviil Revision Application and be pleased to call for the record and proceedings of wakf Application No.53 of 2016 and further be pleased to quash and set aside the operative order only, passed by the learned Gujarat State wakf Tribunal in wakf Appeal No. 53/2016 dated 29.01.2019, in the interest of justice.
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the operative order passed by the learned Gujarat State wakf Tribunal, Gandhinagar, in wakf Appeal No.53/2016 dated 29.01.2019.
(D) Such other and further relief/s as may be deem just and proper in the facts and circumstances of the case may pleased be granted in favour of the applicant in the interest of justice."Page 1 of 10 Downloaded on : Sat Jan 11 01:40:42 IST 2020 C/CRA/222/2019 ORDER
2. The petitioners - original opponent Nos. 2 to 8 have stated that there is a Mohammadiya Masjid Madresa and Kabrastan Wakf at Amroli, Taluka - Choryasi, District; Surat. The said wakf was not registered. Resultantly, an application was made by respondent No.3 herein, who is Imran Allarakha Qureshi on 31.03.2010 for registration of wakf u/s. 36 of the Wakf Act, 1995. The applicants also given an application for registration of the above wakf on 03.04.2010 u/s. 36 of the Wakf Act and, thereafter, it has been stated that the said wakf was registered u/s. 36 of the Wakf Act by the Gujarat State Wakf Board on 31.03.2010 and one Ganibhai Mohammadbhai Mansuri came to be appointed as the President of wakf on 18.01.2011 by the wakf board.
2.1 It is further the case of the petitioner that trustees conveyed the meeting of all the members of wakf on 15.07.2011 and in the said meeting, it was resolved to enroll new members to conduct the new business of waqf and it is submitted that agenda was published on Masjid Notice board on 09.07.2011 and prior permission of Police Commissioner, Surat was obtained for convening the meeting. The videography of the meeting was also done. New Mutawallies submitted their respective affidavits. The change report No.359 of 2011 along with an affidavit of new Mutawallis came to be submitted to the Wakf board. Simultaneously, private respondent also submitted a change report No.373 of 2011. Both the change report were heard by the Wakf Board personally. Personal hearing was fixed at Circuit House, Surat. Both the sides have remained present but thereafter another hearing was fixed on 14.02.2012. The applicant remain present on that day. However, respondent No.3 herein who has submitted change report No. 373/11 refused to accept the Registered Post which was about the date of hearing communication. The further Page 2 of 10 Downloaded on : Sat Jan 11 01:40:42 IST 2020 C/CRA/222/2019 ORDER notice was also given to the parties informing the next date of hearing which was scheduled on 28.02.2012, wherein both the parties have directed to remain present at the office of respondent Board, Gandhinagar. Again respondent No.3 refused to accept the service, which ultimately lead the respondent - board to pass an order dated 20.03.2012 whereby the change report No.359 of 2011 came to be allowed and the change report No. 373 of 2011 which was presented by respondent No.3 came to be rejected. The entry also came to be mutated in the register, pursuant to change report No.359 of 2011. Even respondent board has also given certificate dated 11.07.2012 and has given list of Mutawallis and registration number was also given as 0116. Yet another meeting thereafter conveyed on 10.06.2012 according to the petitioner, wherein it was resolved that term of Muttawallis is fixed for period of three years and resolution was sent to the board which was accepted and mutated in the register.
3. Feeling aggrieved by and dissatisfied by the said order dated 20.03.2012, whereby one change report was granted and another rejected, the respondent No.3 who did not remain present rather refused to accept the intimation for hearing preferred an application being Wakf Application Nos.2 and 3 of 2012 u/s. 83 of the Wakf Act, 1995 along with that Exh.5. application was also submitted whereupon notices have been issued. However, neither the applicant nor his advocate remained present. As a result of this an order was passed to proceed ex parte in the same application. However, the said application was withdrawn by respondent No.3 on 20.03.2019. Accordingly no proceedings are pending pursuant to the withdrawal pursis at the instance of respondent No.3. Thereafter it appears that the private respondent herein preferred Special Civil Application No.3718 of 2011 before this Court Page 3 of 10 Downloaded on : Sat Jan 11 01:40:42 IST 2020 C/CRA/222/2019 ORDER wherein the applicants have been joined as party respondent and the said writ petition came to be disposed of on 01.08.2012.
3.1 It is further the case of the petitioner that apprehending that private respondent may approach the Civil Court and may get ex parte interim order, a caveat application was submitted before the Principal Sr. Civil Judge, Surat. However, the impugned order came to be passed without joining the applicants trustees and without even issuance of notice. Even though they are trustees and even though their names are figuring in PTR, by suppressing such material facts the Wakf Appeal No.5 of 2012 came to be filed before the learned Principal Civil Judge, Surat. The private respondent though caveat application was filed by the petitioner did not join in the appeal proceedings and only after joining Gujarat State Wakf Board as sole respondent, the Exh5 application in the said proceedings insisted upon and it was ordered that Gujarat State Wakf Board would take appropriate procedure of registration u/s. 36 of the Wakf Act, 1995 and the appeal proceedings came to be disposed of vide order dated 18.03.2015. This order has been insisted upon by the private respondent without joining present petitioners as party and without looking at it and without hearing the affected person an order came to be passed. As a result of this Criminal Revision Application No.37 of 2016 which came tobe allowed vide order dated 04.04.2017. The effect of said order passed by the High Court on 04.04.2017 the impugned order which has been passed on 18.03.2015 came to be set aside and the matter is remanded back to the tribunal for fresh consideration.
3.2 It is further the case of the petitioner that, after an order came to be passed on 04.04.2017, the Gujarat State Wakf Tribunal before whom the matter came to be heard given a new number as Page 4 of 10 Downloaded on : Sat Jan 11 01:40:42 IST 2020 C/CRA/222/2019 ORDER Wakf Application No.53 of 2016. The matter was heard from time to time by the tribunal. Initially the opponents had not pressed the interim stay application, but then by final order the proceedings came to be disposed of on 29.01.2019 and the Gujarat State Wakf Tribunal came to the conclusion that there is no illegality or perversity in the order passed by the Gujarat State Wakf Board and came to the conclusion that issue No.1 held in negative, despite final order came to be passed. It is further the case of the petitioner that respondent who filed Special Civil Application No.9406 of 2016 for seeking removal of administrator appointed for administering the wakf, the petition came to be disposed of on 17.06.2016 wherein directions was issued to decide an application u/s. 36 of the act as expeditiously as possible but not later then three months. Simultaneously, the present petitioner also preferred Special Civil Application No.6781 of 2015 challenging the order passed by the District Collector under the provisions of Section 68 of the Wakf Act. The said petition also came to be finally disposed of on 03.02.2016, and the applicants had been handed over the charge of wakf by an order dated 19.03.2019 and since then the applicant and Mutavllis have been doing and administering the wakf.
3.3 It is further the case of the petitioner that Gujarat State Wakf Board has issued a notice on the applicants and otherside to remain present for hearing pursuant to the order passed by the Wakf Tribunal. First notice was issued on 25.03.2019. Another came to be issued on 28.03.2019. But then according to the petitioner the impugned order dated 29.01.2019 passed in Wakf Application No.53 of 2016 since was apparently suffers from the vise of non application of mind and unjust and invalid, the petitioners are constrained to approached this Court by way of filing present Civil Page 5 of 10 Downloaded on : Sat Jan 11 01:40:42 IST 2020 C/CRA/222/2019 ORDER Revision Application u/s. 115 of the Code of Civil Procedure. The Court has issued notice on 25.04.2019 pursuant to which both the sides have been heard by the Court today, wherein Mr. Harnish Darji, learned advocate appearing for the petitioner has drawn the attention of this Court that while passing the impugned order dated 29.01.2019 the judgment which has been relied upon of Special Civil Application No.9406 of 2016 dated 17.06.2016 is not possible to be applied in view of the fact that the main order came to be set aside by a subsequent order passed in Civil Revision Application No.37 of 2016 on 04.04.2017 and, therefore, the order passed is suffering from the vize of non application of mind. It has been further submitted that if the tenure of the order dated 04.04.2017 to be looked into, the Honourable Court has set aside in clear terms the order dated 18.03.2015 and the Court had passed a specific order directing the tribunal to pass an appropriate order below Exh.5 in accordance with law, after giving an opportunity to both the sides. Having that being so and that order passed after hearing both the sides there is hardly any reason the authority to pass an order relying upon the previous order which has no significance in view of this subsequent development and therefore apparently the impugned order is required to be set aside.
3.4 It has further been submitted that even otherwise the impugned order is against the evidence produced on record and so far as Wakf tribunal, which has framed two points for consideration it has come to the conclusion that point NO.1 held to be negative and found that there is no reason to interfere with the impugned order passed by the Gujarat State Wakf Board. However, it has given a direction to the Gujarat State Wakf Board that it may here application u/s. 36 of the Wakf Act as directed by the Honourable High Court on the basis of order passed in Special Civil Application Page 6 of 10 Downloaded on : Sat Jan 11 01:40:42 IST 2020 C/CRA/222/2019 ORDER No.9406 of 2016. This being so, this order in question is absolutely unjust, arbitrary, reflects clear non application of mind. Hence on this ground alone, the same be quashed and set aside. It has further been submitted that while passing the impugned order learned tribunal has not verified the facts and not examined the material which was placed before it. On the contrary by virtue of order passed by the High Court of Gujarat, no application can be said to be pending before the Gujarat State Wakf Board and when there is no application, there is hardly any question of rehearing. This being so, the impugned order requires to be set aside.
4. Learned advocate Mr. MTM Hakim appearing with Mr. Sadiq Ansari appearing for contesting respondent has vehemently continued that even otherwise it is well within the authority to pass an order and simply because the learned authority has relied upon the earlier order which has been passed by the High Court in writ petition that cannot be a ground for ignoring most material aspect, which has been agitated from time to time. In fact, Mr. MTM Hakim, learned advocate for the respondent has submitted that the tribunal has passed an order is after proper application of mind and there is hardly any reason to interfere in exercise of revisional jurisdiction. However, learned advocate Mr. Hakim has candidly submitted that he would not be in a position to defend beyond proportion, in view of the fact that Civil Revision Application No.37 of 2016 came to be decided on 04.04.2017 wherein the original order dated 18.03.2015 came to be set aside. Resultantly the further consequential steps which are required to be taken, appropriate remedy be made available to the respective side.
5. Having heard learned advocates of both the parties and Page 7 of 10 Downloaded on : Sat Jan 11 01:40:42 IST 2020 C/CRA/222/2019 ORDER having gone through the material on record it ex facie appears that original order dated 18.03.2015 which was passed Wakf Appeal No.5 of 2012 came to be specifically set aside by the High Court on 04.04.2017 while disposing of Civil Revision Application No.37 of 2016 now simultaneously if an order which has been relied upon by the authority i.e. the tribunal passed in Special Civil Application No.9406 of 2016 dated 17.06.2016 to be looked into, paragraph 2 makes it clear that, what has been agitated was only for the purpose of disposal of proceedings pending before respondent No.1 in pursuance to order dated 18.03.2015 passed in Wakf Appeal No.5 of 2012 and that was since, the respondent No.2 was taking decision de horse the provisions of Wakf Act. Resultantly what has been mentioned by the Court in an order dated 17.06.2016 the relevant abstract contain in paragraphs 3 and 4 deserves to be incorporated herein after.
"[3] Without entering into merits of the present petition and considering the fact that when issue as to smooth administration of Waqf and Waqf property is already at large before the Waqf Board in pursuance to the order of learned trial tribunal passed in Waqf Appeal No. 05 of 2012, the respondent No.1 can be directed to expedite the proceedings for registration of Waqf under Section 36 of the Waqf Act.
[4] In view of facts as emerging on record, it would meet the end of justice, if the respondent No.1 is directed to expedite the above proceedings so that further controversy can be avoided and smooth administration of the Waqf and Waqf property can be ensured. Accordingly, respondent No.1 is directed to decide the application preferred under Section 36 of the Waqf Act as expeditiously as possible but not later than three months from the receipt of copy of this order. It is clarified that this Court has not examined the merits of the said application and therefore, respondent No.1 shall pass order after hearing the parties concerned and in accordance with law."
5.1 Additionally in the context of now if the order which has been passed by the High Court in Civil Revision Application No.37 of 2016 dated 04.04.2017 if to be looked into, after hearing at length, Page 8 of 10 Downloaded on : Sat Jan 11 01:40:42 IST 2020 C/CRA/222/2019 ORDER the impugned order dated 18.03.2015 came to be set aside and the matter was remanded back to the tribunal for deciding application Exh.5. The relevant extract of the said order contained in paragraphs 7 and 8 reads as under ;
"7. Having regard to the submissions made by learned advocates for the parties, and to the documents on record, more particularly the impugned order passed by the Tribunal, it appears that the Tribunal has set aside the order dated 05.02.2011 of the Wakf Board appointing the President and Muttavalis of the Wakf at the interim stage, though no such prayer was sought for by the present respondents in the Appeal. When the respondents had sought for the stay against the order of registration dated 18.01.2011, as rightly submitted by the learned Senior Advocate Mr. Mehta, the Tribunal could not have passed the order setting aside the appointments of the President and the Muttavalis, without hearing them, and thereby allowing the Appeal at the interim stage. The learned advocate Mr. Hakim has also not disputed the fact that though the applicant had filed the Caveat before the Tribunal in respect of the proceedings of the administration of the Wakf, the respondents had not impleaded him and other Muttavalies as the party opponents in the Appeal, though they were appointed by the Wakf Board as the President and Muttavalis of the Wakf vide the order dated 05.02.2011. Hence, the impugned order having been passed by the Tribunal in utter violation of the principles of natural justice, and even otherwise being not tenable in the eye of law, deserves to be set aside.
8. In that view of the matter, the impugned order dated 18.03.2015 passed by the Tribunal is set aside. The matter is remanded to the Tribunal for deciding afresh the application Exh. 5 filed by the respondents in Wakf Appeal No. 5 of 2012. The respondents shall implead the present applicant as the party respondent in the said Appeal, and the Tribunal shall pass the appropriate order below Exh.5 in accordance with law after granting reasonable opportunity of hearing to the parties. It is clarified that the Court has not expressed any opinion on the merits of the case. The present Civil Revision Application is allowed accordingly."
5.2 In view of the aforesaid situation, now if an order dated 29.01.2019 is to be seen, there appears to be an apparent non application of mind and non reliance of order passed by the High Court dated 17.06.2016 in Special Civil Application NO.9406 of 2016. This order in view of earlier position could not have been relied upon in any form and as such the impugned order dated Page 9 of 10 Downloaded on : Sat Jan 11 01:40:42 IST 2020 C/CRA/222/2019 ORDER 29.01.2019 deserves to be set aside on this count. Accordingly, the impugned order passed by the tribunal is hereby quashed and set aside, without much expressing anything on merits of the case. This setting aside the order will not in any way prejudice the rights of either party and will not be utilized in the steps which are to be carried out pursuant to the direction contained in paragraph 8 as stated above.
With this clarification present petition stands allowed.
(A.J. SHASTRI, J) DRASHTI K. SHUKLA Page 10 of 10 Downloaded on : Sat Jan 11 01:40:42 IST 2020