Manzar Hussain( Muttawalli) vs The State Of Bihar & Ors on 29 January, 2015

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Patna High Court - Orders

Manzar Hussain( Muttawalli) vs The State Of Bihar & Ors on 29 January, 2015

The petitioner is aggrieved by the order bearing Resolution no.20 dated 20.11.2013 of the Bihar State Sunni Wakf Board (hereinafter referred to as 'the Board') as contained in Annexure-13, whereby a decision has been taken for removal of the petitioner from the post of Mutawalli of Wakf Estate No.1372, Chapra commonly known as 'Gulzar Wakf Estate'. Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 2 The petitioner has also prayed for issuance of a writ in the nature of certiorari for quashing the office order dated 10.12.2013 bearing Memo no.3083 issued by the Chief Executive Officer of 'the Board' whereby the Chairman has been pleased to appoint one Janab Rafaqat Hussain alias Mithu, son of Late Md. Quddus as Mutawalli of Wakf Estate No.1372, Chapra under section 63 of the Wakf Act, 1995 (hereinafter referred to as 'the Act') in place of the petitioner for a period of three years.

Mr. Mahesh Narayan Parbat, learned senior counsel has appeared for the petitioner, Mr. Rashid Izhar has appeared for 'the Board', Mr. Syed Qaiser Hassan has appeared for the respondent no.6, Mr. Prashat Kashyap has appeared for the newly added respondent no.7 and Mr. M.K. Sinha, learned Standing Counsel No.6 has appeared for the State.

A preliminary objection was raised by Mr. Rashid Izhar as to the maintainability of the writ petition inter alia, on grounds that an order passed under section 64 of 'the Act' is appealable before the Wakf Tribubanal constituted under section 83 of 'the Act'. It was sought to be contended by Mr. Izhar that in view of the statutory remedy available to the petitioner, the writ petition is not maintainable. Mr. Izhar in support of his submission has relied upon a judgment of the Supreme Court Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 3 reported in (2010)8 SCC 726 (Ramesh Gobindram vs. Sugra Humayun Mirza Wakf) and a decision of this Court reported in 2010(1) PLJR 126 (Md. Moinuddin vs. Md. Mustafa). On the strength of the judgments and the statutory provisions relied upon, it was contended by Mr. Izhar that the remedy of appeal being available under 'the Act' to the petitioner, the writ petition be accordingly disposed of as the Wakf Tribunal is presently working and functional for all legal purposes.

The preliminary objection has been contested by Mr. Parbat by making two-fold submissions, namely:

(a) That the order passed under section 63 of 'the Act' appointing the respondent no.7 as a Mutawalli is not appealable; and

(b) That the Tribunal is not functional inasmuch as there is only one member present.

He thus submits that in such circumstance the only remedy available for the petitioner is by way of present writ petition.

I have heard learned counsel for the parties on the preliminary objection raised. There is absolutely no contest to the submission of Mr. Izhar that an order of removal of Mutawalli passed under section 64 of 'the Act' is appealable Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 4 under section 64 (4) of 'the Act' before the Wakf Tribunal constituted under section 83 of 'the Act'. Whereas it is the contention of Mr. Izhar, learned counsel appearing for the Wakf Board that the Tribunal is functional, the contention has been opposed by Mr. Parbat who submits that as there is a single member functional in the Tribunal, it does not fulfill the requisite quorum to constitute Tribunal for adjudicating on the issue. It was specifically contended by Mr. Parbat that the Tribunal is not functional for it only consists of a single member and which position has not been contested by Mr. Izhar, learned counsel appearing for the Wakf Board who though tried to submit that a single member was vested with the powers of Tribunal to adjudicate on any dispute but such submission does not find support from any statutory provisions.

Section 64(4) of 'the Act' provides that an appeal against an order passed under sub-section (1) would be appealable before the Tribunal.

Section 83 of 'the Act' provides for constitution of the Tribunal and the power is vested in the State Government to notify as such in the Official Gazette.

Section 83(4) of 'the Act' as it originally existed did provide that the Tribunal would consist of one person who shall Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 5 be a member of the State Judicial Service holding a rank not below that of a District, Sessions or Civil Judge, Class-I but the said provision underwent a change vide Wakf (Amendment) Act, 2013, whereby the Tribunal so constituted under section 83 would now consist of three members and who collectively would have the power to adjudicate on any dispute. The provision is very explicit and runs as follows:

83. Constitution of Tribunals, etc.-

.... .... .... .... ...

(4) Every Tribunal shall consist of-

(a) one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class 1, who shall be the Chairman;

(b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member;

(c) one person having knowledge of Muslim law and jurisprudence, Member, and the appointment of every such person shall be made either by name or by designation.

The amendment was enforced with effect from 23.9.2013 and thus the orders impugned having been passed subsequent thereto, would be governed by the amended provisions.

In view of eloquent legal position where the Tribunal constituted under section 83 of 'the Act' consists of three Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 6 members who would form a quorum and since admittedly there exists only a single member, the quorum is not complete and the Tribunal cannot be said to be statutorily constituted nor is the single member vested with powers of adjudication. The statutory provisions nowhere provide that in absence of other members, a single member would be vested with powers to adjudicate as a Tribunal.

In view of the existing legal position, the preliminary objection cannot be sustained and is hereby overruled.

Adverting to the merits of the case although extensive arguments have been advanced by learned counsel appearing for the contesting parties but in the nature of the order which this Court proposes to pass it would not require to delve deep into the matter.

The facts of the case briefly stated is that on 18.09.1918 a Wakf-Alal-Aulad was constituted vide Deed No.6481 by Sheikh Gulzar Hussain ancestor of the petitioner as well as respondent no.7. It was clearly mentioned in the deed that the joint property which consisted of a residential house within an area of 3 kathas together with 5 kathas of vacant land appertaining thereto, would form the Wakf-Alal-Aulad so that none of the descendants in any way would waste the property Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 7 rather would get benefit thereof and enjoy the same. It is further mentioned that the Wakf-alal-aulad so executed would continue to be in occupation of the 'Wakif' as a Mutawalli during his life time and after his death any of the sons from the son's side would be entitled to be appointed as such for managing the property. It is further mentioned in the deed that after payment of landed rent to the landlord and meeting other expenses the rest amount would be distributed amongst the heirs from both sides i.e. son's side and daughter's side. The deed categorically prohibits the heirs of the executant to divide the property among themselves or encumber the same or sell the property or execute any deed or transfer the property by any type of deed. A copy of the deed is placed at Annexure-1 to the writ petition.

The State of Bihar enacted the Wakf Act in the year 1947 for better administration of Wakfs in the State of Bihar and section 2(m) of the said Act defined 'Wakf' to inter alia also include a 'Wakf-alal-aulad'. The Parliament subsequently enacted the Wakf Act, 1954 which in section 1(3) provided that it shall come into force in the States from date the Central Government may notify by notification in the Official Gazette. It is not in dispute that the Wakf Act, 1954 was enforced in the State of Bihar vide notification No.G.S.R. 197 dated 7.4.1973 Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 8 published in the Gazette of India Extraordinary and though the term 'Wakf' as defined under section 3(l) of the Wakf Act, 1954 did not initially include 'Wakf-alal-aulad' but the same was included vide the Wakf (Bihar Amendment) Act, 1974 (Bihar Act 3 of 1975) when Section 3(l) of the Wakf Act was amended to also include in its clause (iii) the 'Wakf-alal-aulad' w.e.f. 12.4.1973. The Wakf Act, 1954 was repealed and replaced by the Wakf Act, 1995 and this Act while repealing all State enactments saved all actions taken under the repealed enactments. The term 'Wakf' has been defined under section 3(r) of the Wakf Act, 1995 and in its clause (iii) it includes all 'Wakf-alal-aulad' to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable and 'Wakif' has been defined to mean such person making such dedication.

The petitioner was appointed Mutawalli by the Wakf Board in 1978 and which is not in dispute. In 1992 some lessees led by Damyanti Kuwer filed a Title Suit No.122 of 1992 questioning the jurisdiction of the Wakf Board to interfere with the 'Wakf-alal-aulad' property which suit was dismissed on contest vide judgment and decree passed by Munsif 3rd, Saran at Chapra on 16.12.2000. Being aggrieved the plaintiffs moved in Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 9 appeal giving rise to Title Appeal No.16 of 2001 and the 4th Additional District and Sessions Judge vide judgment and decree passed on 20.7.2004 held the 'Wakf' to be a private wakf and not covered by the definition of 'Wakf' provided under section 3(r) (iii) of 'the Act'. In fact the points for consideration have been framed by the appellate court at paragraph 14 of the judgment which is placed at Annexure-14 to the writ petition and issue no.3 specifically covers the issue. The conclusion thereon is drawn in paragraph 18 of the judgment. The judgment and decree of the appellate court declaring the Wakf to be a private wakf and not regulated under the Wakf Act, 1995 though was not questioned by the Wakf Board although its jurisdiction had been taken away but has been questioned by the defendant- respondent no.3 in appeal namely Om Prakash by filing Second Appeal No.240 of 2004 which remains pending for consideration before this Court.

Mr. Parbat has exclusively relied upon the judgment and decree passed by the appellate court in Title Appeal No.16 of 2001 placed at Annexure-14 to submit that since after the decree of the appellate court holding the Wakf to be a private wakf, the property has moved out of the jurisdiction of the Wakf Board, for regulating its management or to pass any orders. It is Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 10 submitted that in view of the decree which binds the Wakf Board, the orders placed at Annexures 12 and 13 of the writ petition cannot be upheld.

Counsel for the respondents on the other hand, have relied upon a separate round of litigation emanating from M.A. No.4 of 1987 heard with M.A. No.7 of 1987 whereunder the appellants had questioned the jurisdiction of the Wakf Board in issuing directions to vacate the property and to hand over its vacant possession to the Wakf Board.

Mr. Izhar with reference to the contentions noticed at paragraph 6(1) of the judgment passed in the said appeals, a copy of which is placed at Annexure-I/12 series to the counter affidavit filed by respondent no.7 has submitted that the issue whether the property in question is a Wakf property and covered under the provisions of the Wakf Act, 1954, was in consideration before the court below and with reference to the findings recorded at paragraph 9 of the judgment it was submitted that the jurisdiction of the Wakf Board was upheld and which position was confirmed by this Court when the Civil Revision Nos.1737 and 1739 of 1990 were dismissed on 26.9.1995 which order is enclosed at Annexure-I/12 series. It is submitted that even the Special Leave to Appeal was dismissed Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 11 on 12.8.1998 and which order of the Supreme Court is also a part of Annexure-I/12 series. It is the contention of the counsel for the Wakf Board that the attention of the first appellate court in T.A. No.16 of 2001 was not drawn towards the judgments and orders passed earlier in the matter.

Mr. S. Qaiser Hassan appearing for the respondent no.6 has referred to section 112(2) and 112(3) of 'the Act' as well as the proviso attached thereto to submit that once the Wakf has been brought within the purview of the Wakf Act, any amendment in the provision as to the classification of 'Wakf- alal-aulad' would not alter the legal position, for the Wakf in question having once been brought within the purview of 'the Act', would continue to be regulated under 'the Act'. In support of his submission Mr. Hassan has relied upon a judgment of this Court reported in 2008 (3) B.L.J. 151 (Syed Hassan Francis Imam vs. The Muzaffarpur Properties), particularly paragraphs 16 to 19 to submit that once a Wakf it always remains a Wakf.

The broad arguments advanced by learned counsel for the parties demonstrate that the legal position as regarding the regulation and control of 'Wakf-alal-aulad' by the Wakf Board has been changing from time to time. The definition of Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 12 'Wakf' as it exists today and finds defined in Section 3(r) (iii) of 'the Act', intends to cover only such 'Wakf-alal-aulad' which are dedicated for any purpose recognised by Muslim law as pious, religious or charitable.

In any other circumstance this Court while taking note of the modification in the definition of the term 'Wakf' from time to time, would have proceeded to adjudicate on the matter more particularly in view of the decree of the appellate court in T.A. No.16 of 2001 but then any opinion by this Court at this stage would be pre-empting a finding on the issue which is pending consideration in S.A. No.240 of 2004 and more so when such consideration would be in context with the law as it exists today. In such circumstance where the appellate court in T.A. No.16 of 2001 has held the Wakf property in question to be a private wakf and the petitioner though appointed by the Wakf Board now seeks to derive the advantage under the said decree, in my opinion any adjudication by this Court as to the nature of Wakf in view of the contesting stands taken by the respective parties and in view of the development in law as well as the judgments on the issue, would amount to pre-judging the issue specially when the larger issue remains open for consideration before the second appellate court.

Patna High Court CWJC No.2662 of 2014 (8) dt. 29.01-2015 13

In the circumstances taken note of and discussed hereinabove, this Court is of the opinion that since the larger issue i.e. whether the Wakf in question would be regulated under the Wakf Act, 1995 or the Wakf in question, is a private wakf, remains open for contest in S.A. No.240 of 2004, it would be expedient in the interest of justice that this matter be also considered by the Bench in seisin of S.A. No.240 of 2004 for a conclusive finding on the issue.

Let the records of the writ petition be placed before the concerned Bench in seisin of S.A. No.240 of 2004 as per roster after obtaining permission of Hon'ble the Chief Justice.

The writ petitioner would at liberty to pray for interim relief before the concerned Bench.

(Jyoti Saran, J) SKPathak/-

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Patna High Court - Orders