Gujarat High Court
Mohammed Yusuf Alimiya Arab vs Amunullah Hafizullah Khatib (Saiyad) & ... on 3 August, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/274/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 274 of 2016
In
SPECIAL CIVIL APPLICATION NO. 8666 of 2015
with
CIVIL APPLICATION NO. 2851 of 2016
In
LETTERS PATENT APPEAL NO. 274 of 2016
==========================================================
MOHAMMED YUSUF ALIMIYA ARAB....Appellant(s) Versus AMUNULLAH HAFIZULLAH KHATIB (SAIYAD) & 3....Respondent(s) ========================================================== Appearance:
SHRI SHALIN MEHTA, SENIOR COUNSEL with SHRI DHAVAL D. VYAS, ADVOCATE for the Appellant(s) No. 1. SHRI M.T.M. HAKIM, ADVOCATE with SHRI RIZWAN SHAIKH, ADVOCATE for respondent no.1.
SHRI PERCY KAVINA, SENIOR COUNSEL with SHRI MAHAVIR M GADHVI, ADVOCATE for the Respondent(s) No. 2. ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 03/08//2016 CAV ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) Respondent no.4 in Special Civil Application No.8666 of 2015 has filed this Letters Patent Appeal under Clause 15 of the Letters Page 1 of 17 HC-NIC Page 1 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER Patent, aggrieved by order dated 25.02.2016 passed by the learned Single Judge in the above petition.
2. Respondent no.1 herein - original petitioner has filed the aforesaid Special Civil Application seeking reliefs with prayers, which read as under:
"(A) This Hon'ble Court may be pleased to quash and set aside the impugned order dated 27/03/2015 passed by the Respondent No.1 - Gujarat State Waqf Board in the interest of justice.
(B) This Hon'ble Court may be pleased to hold and declare that the permission for sale granted by the Respondent No.1 - Gujarat State Waqf Board is contrary to the Section 51 of the Waqf Act, 1995 amended in 2013 in the interest of justice.
(C) Pending admission, hearing and till final disposal of present petition this Hon'ble Court may be pleased to stay the implementation, operation and enforcement of the impugned order dated 27/03/2015 passed by Respondent No.1 - Gujarat State Waqf Board.
(D) This Hon'ble Court may be pleased to award the costs of the petition.
(E) This Hon'ble Court would be pleased to grant such other and further relief/s as may be deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice."Page 2 of 17
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3. From the aforesaid prayers, mainly challenge in the Special Civil Application is to order dated 27.03.2015 passed by the Chairman, Gujarat State Waqf Board, by which permission was granted for sale of waqf property bearing Survey No.11/2/62 admeasuring 4062.33 sq meters situated at Bavamanpura, Vadodara.
4. Section 51 of the Waqf Act, 1995 is relevant for the purpose of considering the issue involved in the appeal. Section 51 of the Waqf Act, 1995 is amended in the year 2013. Section 51 of the Waqf Act, prior to its amendment, was as under:
51. Alienation of wakf property without sanction of Board to be void.-
(1) Notwithstanding anything contained in the wakf deed, any gift, sale, exchange or mortgage of any immovable property which is wakf property, shall be void unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board:
Provided that no mosque, dargah or khangah shall be gifted, sold, exchanged or mortgaged except in accordance with any law for the time being in force.
(2) The Board may, after publishing in the Official Gazette, the particulars relating to the transaction referred to in sub-section (1) and inviting any Page 3 of 17 HC-NIC Page 3 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER objections and suggestions with respect thereto and considering all objections and suggestions, if any, that may be received by it from the concerned mutawalli or any other person interested in the wakf, accord sanction to such transaction if it is of opinion that such transaction is-
(i) necessary or beneficial to the wakf;
(ii) consistent with the objects of the wakf;
(iii) the consideration thereof is reasonable and adequate:
Provided that the sale of the property sanctioned by the Board shall be effected by public auction and shall be subject to confirmation by the Board within such time as may be prescribed:
Provided further that the Tribunal may, on the application of the aggrieved mutawalli or other person, for reasons to be recorded by it in writing, permit such sale to be made otherwise than by public auction, if it is of opinion that it is necessary so to do in the interest of the wakf.
(3) The utilization or investment of the amount realised by the sale or exchange mortgage or any property shall be made by the mutawalli subject to the approval of the Board, and where any amount has been raised by mortgage of any such property, the mutawalli or other person shall make repayment of the mortgage-debt and obtain a discharge of the mortgage-debt from the mortgage within such reasonable time as the Board may specify.
(4) Every approval given by the Board under sub-Page 4 of 17
HC-NIC Page 4 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER section (3) shall be communicated to the mutawalli and shall also be published in the manner prescribed. (5) The mutawalli or any other person having an interest in the wakf who is aggrieved by the decision given under sub-section (3), may, within ninety days from the date of communication to him of such decision or the publication of the decision, as the case may be, prefer an appeal to the Tribunal against such decision, and, thereupon, the Tribunal may, after giving the appellant and the Board, a reasonable opportunity of being heard, confirm, modify or set aside such decision."
5. The aforesaid provision of section 51 of the Waqf Act was amended with effect from 01.11.2013. Relevant portion of the amended provision of the aforesaid section reads as under:
""51. Alienation of Waqf property without sanction of Board to be void:
(1) Notwithstanding anything contained in the waqf deed, any lease of any immovable property which is waqf property, shall be void unless such lease is effected with the prior sanction of the Board:
Provided that no mosque, dargah, khangah, graveyard, or imambara shall be leased except any unused graveyards in the States of Punjab, Haryana and Himachal Pradesh where such graveyard has been leased out before the date of commencement of the Wakf (Amendment) Act, 2013.
(1A) Any sale, gift, exchange, mortgage or transfer Page 5 of 17 HC-NIC Page 5 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER of waqf property shall be void ab initio:
Provided that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take up the development of such property through such agency and in such manner as the Board may determine and move a resolution containing recommendation of development of such waqf property, which shall be passed by a majority of two-thirds of the total membership of the Board.
Provided further that nothing contained in this sub- section shall affect any acquisition of waqf properties for a public purpose under the Land Acquisition Act, 1894 (1 of 1894) or any other law relating to acquisition of land if such acquisition is made in consultation with the Board:
Provided also that -
(a) the acquisition shall not be in contravention of the Places of Worship (Special Provisions) Act, 1991 (42 of 1991);
(b) the purpose for which the land is being acquired shall be undisputedly for a public purpose;
(c) no alternative land is available which shall be considered as more or less suitable for that purpose; and
(d) to safeguard adequately the interest and objective of the waqf, the compensation shall be at the prevailing market value or a suitable land with reasonable solatium in lieu of the acquired property."Page 6 of 17
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6. As per the amended provision, under subsection (1A) of section 51 of the Act, any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab initio. Prior to amendment, Waqf Board had powers to grant permission for sale of waqf properties. By the amended provision, power to grant permission for sale of waqf property is taken away.
7. Respondents no.3 and 4 herein submitted an application to the Waqf Board on 19.06.2013 for sale of waqf property. Pursuant to the same, Waqf Board, in its first meeting held on 31.07.2013, has considered such application. After calling for Spot Inspection Report, Waqf Board passed Resolution in its meeting held on 19.09.2013. In further meeting held on 21.12.2013, it was resolved to invite objections for the proposed sale of property. Thereafter, a meeting was held on 17.05.2014 and subsequently, decision was taken granting permission to sell the property by way of auction. In the auction held to sell the property, pursuant to approval granted by Waqf Board, the appellant herein was the highest bidder in the auction and purchased the property, sale deed to that effect was executed in his favour on 27.04.2015. Special Civil Application No.8666 of 2015 was filed by respondent no.1 herein, claiming to be son of deceased trustee/ Mutavalli of the waqf, viz., "Chokansa Pir Ni Dargah". He has questioned the permission granted for sale of the waqf property, mainly on the ground that, in view of the amended provision under section 51 of the Waqf Act, 1995 the Page 7 of 17 HC-NIC Page 7 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER order passed by the Waqf Board is illegal, arbitrary and contrary to the provisions of the Act.
The learned Single Judge, while issuing rule returnable on 14.11.2016, by way of interim relief issued directions to the effect that no further steps shall be taken by the Waqf Board or any party concerned in relation to the subject matter of the waqf property and such waqf property shall witness status quo during the pendency and final outcome of the petition. It is stated that earlier, ad interim order was passed to maintain status quo on 14.05.2015, such order continued till the impugned order is passed.
8. Heard Shri Shalin Mehta, learned senior counsel assisted by Shri Dhaval D. Vyas, learned counsel for the appellant; Shri M.T.M. Hakim, learned counsel assisted by Shri Rizwan Shaikh, learned advocate appearing on caveat for respondent no.1; and Shri Percy Kavina, learned senior counsel assisted by Shri Mahavir M. Gadhvi, learned advocate for respondent no.2.
9. Shri Shalin Mehta, learned senior counsel appearing for the appellant has mainly contended that the application filed by respondents no.3 and 4 was much prior to the amendment of section 51 of the Waqf Act, as much as the amended provision cannot be applied for sale of the waqf property in question. It is submitted that an application was submitted to the Waqf Board on 19.06.2013 and the Waqf Board has considered it in its first Page 8 of 17 HC-NIC Page 8 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER meeting held on 31.07.2013 and the Board has resolved to sell the property on 19.09.2013, and whereas the provision under section 51 of the Waqf Act, 1995 came to be amended with effect from 01.11.2013. It is submitted that respondent no.1 has no locus standi to question the sale of the property. Earlier also he filed Rent Suit No.104 of 2011 in the Small Causes Court, Vadodara praying for eviction decree against one of the occupants of the waqf property by wrongly describing himself as heir of deceased- Habibulla Pyaremiya Khatib. It is submitted that having filed such a case with wrong description, subsequently he has withdrawn the proceeding. As such, at the instance of such person, no petition can be maintained under Article 226 of the Constitution of India. It is further submitted by the learned counsel that in any event in view of alternative remedy provided under section 83 of the Act, by way of appeal, there is no need to maintain this writ petition bypassing such remedy available under the Statute. It is submitted that in view of the alternative remedy, the learned Single Judge ought not to have entertained the petition itself. In support of his argument, Shir Shalin Mehta placed reliance on judgment of the Hon'ble Supreme Court in the case of Gurcharan Singh Baldev Singh v. Yashwant Singh, reported in (1992) 1 SCC 428, and the judgment in the case of M.S. Shivananda H.S. Ramchandra v. Karnataka State Road Transport Corporation, reported in (1980) 1 SCC
149. Even Shri Percy Kavina, learned senior counsel appearing for respondent no.2-Waqf Board pleaded that in view of effective Page 9 of 17 HC-NIC Page 9 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER remedy available under section 83 of the Waqf Act, the learned Single Judge ought to have relegated the original petitioner to avail alternative remedy. While placing reliance on section 6 of General Clauses Act Act, the learned senior counsel also placed reliance on judgment of the Hon'ble Supreme Court in the case of Glaxo Smith Kline PLC and others v. Controller of Patents and Designs and others, reported in (2008) 17 SCC 416.
10. On the other hand Shri M.T.M. Hakim, learned counsel appearing for respondent no.1- original petitioner would contend that the order passed by the Waqf Board granting permission for sale of Waqf property is ex facie illegal and it runs contrary to the amended provision of section 51 of the Waqf Act, 1995. It is submitted by the learned counsel that mere making application by respondent no.3 prior to amendment of section 51 of the Waqf Act will not confer any right to sell the waqf property. It is submitted that in view of the amended provision, no waqf property can be sold and if the order of the Waqf Board is allowed to stand, the same may run contrary to the objectives of the amendment. It is further submitted that as jurisdiction of the Waqf Board itself is under challenge the Special Civil Application is maintainable and in absence of any factual disputes, the remedy under section 83 of the Waqf Act will not come in the way of his client to approach this Court by way of petition under Article 226 of the Constitution of India.
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C/LPA/274/2016 CAV ORDER
11. Although the learned counsels appearing for the parties argued the matter and advanced various contentions at length, in view of pendency of the Special Civil Application before the learned Single Judge, we are not inclined to deal with all such contentions in detail, at this stage. Having regard to the issue involved in the Special Civil Application, the only aspect which is required to be considered by this Court is whether any grounds are made out to interfere with the order passed by the learned Single Judge at this stage.
12. Firstly, we deal with the arguments advanced by the learned counsel for the appellant that the Special Civil Application is not maintainable in view of the remedy available under section 83 of the Waqf Act, 1995. Chapter VIII of the Waqf Act, 1995 deals with judicial proceedings under section 83(2) of the Waqf Act, any mutawalli or person interested in a waqf or any other person aggrieved by an order made under the Act can approach Waqf Tribunal within the prescribed time for determination of any dispute, question or other matter relating to the waqf. As per section 83(5) of the Act, the Tribunal constituted under the Act shall be deemed to be a civil court under the Code of Civil Procedure, 1908 and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908, while trying a suit, or executing a decree or order. As per section Page 11 of 17 HC-NIC Page 11 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER 83(7) of the Act, decision of the Tribunal shall be final and binding on the parties. There is also a provision under Section 83(8) of the Act to execute any decision of the Tribunal by the civil court in accordance with the provisions of the Code of Civil Procedure. However, under section 83(9) of the Act, this Court is empowered to call for and examine the decision of the Tribunal either on its own motion or on the application of the Board or any person aggrieved, for the purpose of satisfying itself as to the correctness, legality and propriety of any order passed by Waqf Tribunal.
13. From perusal of the order under challenge it is clear that though such a plea of alternative remedy is pleaded by the appellant, the learned Single Judge overlooked such objection, but at the same time it is clarified in the order itself that such a plea shall not be treated as foreclosed. In view of such specific finding of the learned Single Judge, we deem it appropriate to make it clear that the plea of maintainability of writ petition, in view of the alternative remedy provided under section 83 of the Act is to be considered at the stage of final hearing uninfluenced by the findings recorded by order under challenge or in this order.
14. The other contention advanced by Shri Shalin Mehta, learned senior counsel on behalf of the appellant is that as much as application of respondents no.3 and 4 was dated 19.06.2013, the amended provision cannot be made applicable for sale of the Page 12 of 17 HC-NIC Page 12 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER property which is purchased by the appellant. In this regard, we are of the prima facie view that neither the application submitted by respondents no.3 and 4 nor any resolution passed by the Board prior to the amended provision has come into force, will not confer any right to sell the property.
15. Judgment relied on by the learned counsel for the appellant in the case of Gurcharan Singh Baldev Singh v. Yashwant Singh, reported in (1992) 1 SCC 428 (supra) is the matter which relates to the dispute of renewal of permit under Section 58 of the Motor Vehicles Act, 1939. The question in the aforesaid case was with regard to validity of the application filed by an operator for renewal of his permit under Section 58 of the Motor Vehicles Act, 1939, in view of repeal of such Act or enforcement of Motor Vehicles Act, 1988. As much as there is right of renewal of permit granted under Motor Vehicles Act, 1939, by applying the provisions under section 6 of the General Clauses Act, the Hon'ble Supreme Court has held that even after new Act has come into force, the claim of application for renewal under the old Act will continue under section 6(c) of the General Clauses Act. In other judgment in the case of M.S. Shivananda H.S. Ramchandra v. Karnataka State Road Transport Corporation, reported in (1980) 1 SCC 149 (supra), the question which fell for consideration was whether employees of the erstwhile contract carriage operators in the State of Karnataka acquired any vested right of absorption in service Page 13 of 17 HC-NIC Page 13 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER with Karnataka State Road Transport Corporation under sub-clause (3) of clause 20 of the Karnataka Contract Carriages (Acquisition) Ordinance, 1976. In the aforesaid judgment also, the main emphasis was on the distinction between 'what is' and 'what is not' a right preserved by section 6 of the General Clauses Act. In the aforesaid judgment it is held by the Hon'ble Supreme Court that what is unaffected by the repeal of the Statute is right acquired or accrued under it and not a mere 'hope or expectation' or 'liberty to apply for acquiring a right'. Having regard to various clauses in the relevant statute which fell for consideration in the aforesaid case and having regard to the facts of the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant would not render any assistance in support of his plea that the amended provision of section 51 of the Act has no bearing on the issue. Shri M.T.M. Hakim, learned counsel appearing for respondent no.1, in support of his argument that mere submission of an application will not confer any vested right so as to seek benefit of section 6 of the General Clauses Act, has placed reliance on Division Bench judgment of this Court in the case of Baldevbhai Dhanabhai Valand v. State of Gujarat and others, reported in 2010 (5) GLR 4295. In the aforesaid judgment, the issue was under Urban Land (Ceiling and Regulation) Repeal Act, 1999 and sections 3 and 4 of the Urban Land (Ceiling & Regulation) Act, 1976. In the aforesaid judgment, the Division Bench of this Court has considered the question, viz., whether the Page 14 of 17 HC-NIC Page 14 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER application filed under section 20 of the Act which was pending when Repeal Act has come into force, is saved or not. In the said case, the Division Bench of this Court has taken the view that what are saved are the only orders of exemption passed under Section 20(1) of the Act but not the applications which were pending for consideration. In the said context, the Division Bench of this Court has taken the view that mere submission or pendency of an application does not create any vested right or accrued right, within the meaning of section 6(c) of the General Clauses Act. The said judgment in the aforesaid case also supports the case of respondent no.1, because in the case on hand also no decision was taken for sale of Waqf property prior to the Amended Act has come into force.
16. Judgment in the case of Glaxo Smith Kline PLC and others v. Controller of Patents and Designs and others, reported in (2008) 17 SCC 416 (supra), relied on by Shri Percy Kavina, learned senior counsel would not render any support to his case. In the said judgment, by dealing with the provisions of section 6 of the General Clauses Act, 1897, the Hon'ble Supreme Court has considered the provisions of section 6 of the General Clauses Act on the rights which are already accrued. In the aforesaid judgment, the Hon'ble Supreme Court has held that when the repealing statute comes into force during the continuance of pre-existing right to appeal, in such circumstances, in absence of any intention to the contrary in the Page 15 of 17 HC-NIC Page 15 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER repealing statute, the old law creating the right of appeal exists. In the instant case, as we are of the view that no rights are crystallized in favour of respondents no.3 and 4 by mere application submitted to Waqf Board, the said judgment also is not helpful to the case of the respondents.
17. Further, as the learned Judge has ordered to maintain status quo, we are of the view that any interference with such order at this stage would also give scope for interfering with rights of third parties.
18. For the aforesaid reasons, we do not find any merit in this appeal to interfere with the impugned order passed by the learned Single Judge at this stage. It is needless to observe that all the contentions are kept open and are to be decided at the stage of final disposal of the Special Civil Application by the learned Single Judge uninfluenced by the findings recorded in order under challenge or in this order. As it is pleaded that the appellant is bona fide purchaser for valuable consideration in the auction conducted to sell the Waqf property, it is open for the appellant to file Civil Application before the learned Single Judge to expedite the date of hearing of the petitions. If such application is filed, we request the learned Single Judge to consider such application keeping in mind the claim of the appellant that he is bona fide purchaser for valuable consideration of the Waqf property, and to Page 16 of 17 HC-NIC Page 16 of 17 Created On Sat Aug 06 02:42:41 IST 2016 C/LPA/274/2016 CAV ORDER decide the main petition itself and to dispose of the Special Civil Application itself, as expeditiously as possible.
19. The Letters Patent Appeal is dismissed with the aforesaid observations. No order as to cost.
20. Since the main appeal is dismissed, the Civil Application does not survive. The same is accordingly disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) karim Page 17 of 17 HC-NIC Page 17 of 17 Created On Sat Aug 06 02:42:41 IST 2016